Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, September 1, 2017

Collins on the First Amendment and Certainty @UWSchoolofLaw ‏

Ronald K. L. Collins, University of Washington School of Law, is publishing 'And Yet it Moves' — The First Amendment & Certainty in volume 45 of the Hastings Constitutional Law Quarterly (2017). Here is the abstract.

Surprisingly few, if any, works on the First Amendment have explored the relation between free speech and certainty. The same holds true for decisional law. While this relationship is inherent in much free speech theory and doctrine, its treatment has nonetheless been rather opaque. In what follows, the author teases out – philosophically, textually, and operationally – the significance of that relationship and what it means for our First Amendment jurisprudence. In the process, he examines how the First Amendment operates to counter claims of certainty and likewise how it is employed to demand a degree of certainty from those who wish to cabin free speech rights. Drawing its satirical title from words purportedly spoken by Galileo when he was persecuted by ecclesiastical inquisitors for defending the heliocentric theory of Copernicus, the Essay argues that many free speech theories (from Milton to Meiklejohn and beyond) have the net effect of constricting our First Amendment freedoms based on uncertain claims to normative benefits and equally uncertain claims of societal harm. In this general sense, many free speech theorists might be viewed as the descendants (albeit kinder ones) of Galileo’s ecclesiastical detractors insofar as they invoke their own certainty of morals (or normative theories) or alleged harms to override actual facts in order to censor speech. This problem is compounded when First Amendment lawyers must disingenuously pigeonhole their client’s speech into the doctrinal boxes compatible with normative theories. In the duplicitous course of things, bawdy comedy becomes political action, erotic sexual expression becomes self-realization, offensive speech becomes cultural criticism, and imagistic commercial expression becomes consumer information. Strange as it is, in such circumstances falsity is necessarily called into the service of placing a normative face on aberrant expression. By way of a bold counter to all such theories, and duly mindful of the role of real harm in the working scheme of things, the author advances a view of the First Amendment premised less on certainty (and its conceptual cousin, normativity) than on risk – real and substantial risks, properly comprehended. Thus understood, the very idea of risk deserves to be an accepted and preferred part of the calculus of decision-making, be it judicial, legislative or executive. Hence, at the philosophical level, a risk-free First Amendment is a contradiction while at the operational level it is a formula for suppression. Undaunted by the specter of criticism of his own experimental views on the matter, the author invites the kind of First Amendment risk-taking once roundly championed by Justice Louis Brandeis – a brand of freedom though uncertain of its success is nevertheless hopeful of its attainment.

Download the article from SSRN at the link.

September 1, 2017 | Permalink

Thursday, August 31, 2017

Mazzone on Copyright Easements @UIllinoisLaw

Jason Mazzone, University of Illinois College of Law, is publishing Copyright Easements in volume 50 of the Akron Law Review (2017). Here is the abstract.

When authors assign the copyright in their work to publishers, some productive uses of the work are impeded. The author loses opportunities to use or to authorize others to use the work unless the publisher consents; the publisher does not permit all uses of the work that the author would like or that would benefit a consuming audience. Copyright easements can solve the problem. Under a system of copyright easements, an easement holder would have designated rights in a creative work that would permit uses of the work that would ordinarily require permission of the copyright owner. If the author later assigns the copyright to a publisher, the copyright is held subject to the rights of the easement holder. The easement thus ties the author’s own hands: the author can no longer assign an unfettered copyright — and the publisher can no longer ask for it — because of the existence of the easement holder’s interests in the work. Copyright easements can protect the ability of authors, after they assign the copyright, and of others, to make productive uses of works in ways that are unlikely to affect the publisher’s economic interests. Copyright easements can also ensure that uses of works that do not require a copyright owner’s permission but which publishers frequently seek to prevent, such as fair uses, could occur more easily. Copyright easements thus benefit authors and the public alike. These benefits can be easily and immediately produced without any change to the Copyright Act.

Download the article from SSRN at the link.

August 31, 2017 | Permalink

Redish and Fisher on Terrorizing Advocacy and the First Amendment @NorthwesternLaw

Martin H. Redish, Northwestern University School of Law, and Matthew Fisher, Northwestern University School of Law (Students), are publishing Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity in the Fordham Law Review. Here is the abstract.

Recent concern about modern terrorists’ attempts to induce ideologically-driven violence has given rise to a First Amendment dilemma. Some conclude that to preserve our free speech tradition, unlawful advocacy must be protected absent the imminent danger of harm. Others argue that traditional First Amendment protection must be suspended in the specific context of terrorist speech to prevent potentially violent catastrophes. We seek to resolve this dilemma by recognizing a new hybrid category called “terrorizing advocacy.” This is a type of traditionally protected public unlawful advocacy that simultaneously exhibits the unprotected pathologies of true threats. When a speaker urges a willing listener to commit violence against an intended victim who is an intended recipient of the speaker’s advocacy, the speech constitutes a blend of protected persuasive and unprotected coercive speech. We propose a new multi-factor test designed to balance these competing elements in a manner that protects unlawful advocacy when appropriate but suppresses inherently coercive threats where they dominate the expression. In this manner we have recognized an inherent duality of two types of criminal speech when to date courts and scholars have implicitly assumed the mutual exclusivity of unlawful advocacy and true threats doctrine.

Download the article from SSRN at the link.

August 31, 2017 | Permalink

Smith on Intellectual Property and Internet Folklore @CathaySmith

Cathay Y. N. Smith, University of Montana School of Law, is publishing Beware the Slender Man: Intellectual Property and Internet Folklore in volume 70 of the Florida Law Review (2017). Here is the abstract.

Internet folklore is folklore created collaboratively online, within Internet communities, through memes, blogs, video games, fake news, found footage, creepypastas, art, podcasts, and other digital mediums. One of the most striking examples of Internet folklore is the mythos of Slender Man. Slender Man originated on an Internet forum in mid-2009 and quickly went viral, spreading to other forums and platforms on the Internet. His creation and development resulted from the collaborative efforts and cultural open-sourcing of many users and online communities. In the case of Slender Man, users reused, modified, and shared each other’s Slender Man creations, contributing to his development as a crowdsourced monster. This Article uses Slender Man as a case study to examine the creation and production of Internet folklore and cultural products online, and explore how intellectual property law treats these types of collective creations. Specifically, it traces Slender Man’s creation, development, and propertization to explore collaborative creation and ownership rights in Internet folklore. Collaborative creation of cultural products is a familiar story. But who owns those works? And what happens when those works, such as Internet folklore, are propertized? In this Article, I analyze claims to own Slender Man’s character under copyright law and Slender Man’s name and image under trademark law. I argue that even though parties claim to own Slender Man, Slender Man’s character, his name, and image are in the commons, free for anyone to use for their expressive works. In spite of their status in the commons, the claims to own cultural products under intellectual property law and assertions of those claims cause uncertainty and chill creativity, which ultimately harms the public by depriving it of more creative works.

Download the article from SSRN at the link.

Professor Smith presented some of this material at By Any Other's Name, a conference on authorship, appropriation, and law on October 29, 2016, at LSU, in Baton Rouge, LA.

August 31, 2017 | Permalink

Tuesday, August 29, 2017

Studer and de Werra on Regulating Cybersecurity and What Civil Liability Might Accrue in Case of Cyber-Attacks

Evelyne Studer, University of Geneva Faculty of Law, and Jacques de Werra, University of Geneva, have published Regulating Cybersecurity - What Civil Liability in Case of Cyber-Attacks? at 8 Expert Focus 511 (2017). Here is the abstract.

In spite of the growing risks posed by cyber-attacks, the legal fallout and, specifically, the civil liability resulting from such attacks is still unclear and raises complex legal issues namely because of the diversity of potentially applicable liability regimes (which include personal data and product liability regulations). It may thus be that legislative action on this issue will be warranted at some point in the future.

Download the article from SSRN at the link.

August 29, 2017 | Permalink

Opderbeck Responds To Mark Lemley's Article "Faith-Based Intellectual Property" @SetonHallLaw

David W. Opderbeck, Seton Hall University School of Law, has published Lex Machina Non Est: A Response to Mark Lemley's 'Faith-Based Intellectual Property' as Seton Hall University School of Law Legal Studies Research Paper Series 2017. Here is the abstract.

This essay responds to Mark Lemley’s controversial article Faith-Based Intellectual Property. The essay argues that intellectual property requires a far richer concept of human cultural flourishing than positivism and utilitarianism can provide. It argues that Lemley’s understanding of the “laws of nature” and of the relationship between science and religion are based in perspectives that have long been rejected by mainstream scholarship. Finally, the essay offers insights from the creation narratives and the Tower of Babel story in the Hebrew Scriptures to suggest that Lemley’s vision ultimately requires technocratic social control: an ancient and enduring threat to authentic human creative endeavor.

Download the article from SSRN at the link.

August 29, 2017 | Permalink

Monday, August 28, 2017

Bambauer on Whether Privacy Policies are Informational or Ideological @JaneYakowitz

Jane R. Bambauer, University of Arizona College of Law, has published Are Privacy Policies Informational or Ideological? at 66 DePaul Law Review 503 (2017). Here is the abstract.

Consumer privacy is predominantly regulated through disclosure. The Federal Trade Commission (FTC) strongly urges American businesses to notify consumers about their privacy practices, and the agency is considering requiring “just-in-time” disclosure that would make these notices more salient and aggressive. American law contains many mandated disclosure rules, and they fall along a spectrum. Some disclosures are indisputably good policy because they alert consumers about material risks that all would agree are bad, such as product warnings about latent dangers of physical harm. These long-accepted “informational” disclosures are compatible with the compelled speech doctrine of the First Amendment. Other mandated disclosures are arguably poor policy because they mislead consumers and cause foreseeable overreactions. For example, mandated disclosures about the presence of mercury in vaccines, about the foreign origins of products, or about raw correlations between depression and abortion technically consist of factual statements. Nevertheless, they should be treated as “ideological” disclosures running afoul of the compelled speech doctrine. Much less is known about mandated disclosures that fall in the middle of the range, between clearly informational and clearly ideological disclosures. Mandatory privacy disclosures seem to fall in this middle range. These disclosures do not have the virtue of alerting consumers to risks because they concern attributes that consumers do not consistently see as positive or negative. Some disclosures are useful for preference matching where consumers value a product more after learning about an attribute, while others value it less. Some disclosures are useless, meaning that consumers informed about the attribute do not change their valuation at all. These middle range disclosures may be wasteful, but they are not fraudulent or distortive. How should the First Amendment treat the laws that mandate disclosure about these attributes? This essay presents a theory and practical instrument for distinguishing between informational and ideological mandated disclosures, and shows that at least some of the privacy policies required by law are constitutionally suspect.

Download the article from SSRN at the link.

August 28, 2017 | Permalink

Gora on Money, Speech, and Chutzpah @brooklynlaw

Joel M. Gora, Brooklyn Law School, has published Money, Speech and Chutzpah at 43 Litigation 48 (Summer 2017). Here is the abstract.

This article examines the background to the key campaign finance cases of the last 45 years, from before Buckley v. Valeo to after Citizens United. It criticizes the “chutzpah” of those who passed and defended campaign finance laws which directly restrict political speech and association and praises the “chutzpah” of those who challenged those laws as antipathetic to First Amendment rights and democracy’s demands. It traces the origins of the first free speech challenges to modern campaign finance laws, the landmark decisions since then and the most recent legal battles. The author recounts his own experiences as an ACLU lawyer working on many of those landmark cases.

The full text is not available from SSRN.

August 28, 2017 | Permalink

Friday, August 25, 2017

Austin on Authors' Human Rights and Copyright Policy @victoriauninews

Graeme W. Austin, Victoria University of Wellington, is publishing Authors' Human Rights and Copyright Policy in volume 40 of the Columbia Journal of Law & the Arts (2017). Here is the abstract.

This article discusses opportunities for taking account of authors' human rights guarantees in domestic copyright policy, arguing that human rights law should be regarded as one of the sources of international law making that should influence domestic policy issues. Using these ideas as a springboard, it discusses a recent UK copyright case involving the exercise of the copyright termination right (provided under US law) by former members of the pop group Duran Duran.

Download the article from SSRN at the link.

August 25, 2017 | Permalink

Villaronga, Kieseberg, and Li on Artificial Intelligence and the Right to Be Forgotten @eduardfosch @SBA_Research @tiffanycli

Eduard Fosch Villaronga, University of Bolonga, Research Center of History of Law, Philosophy and Sociology of Law, and Computer Science and Law, Peter Kieseberg, SBA Research, and Tiffany Li, Princeton University, Center for Information Technology Policy, are publishing Humans Forget, Machines Remember: Artificial Intelligence and the Right to Be Forgotten in the Computer Securty & Law Review. Here is the abstract.

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the realities of AI technology. First, this Article analyzes the legal background behind the Right to be Forgotten, in order to understand its potential applicability to AI, including a discussion on the antagonism between the values of privacy and transparency under current E.U. privacy law. Next, the Authors explore whether the Right to be Forgotten is practicable or beneficial in an AI/machine learning context, in order to understand whether and how the law should address the Right to Be Forgotten in a post-AI world. The Authors discuss the technical problems faced when adhering to strict interpretation of data deletion requirements under the Right to be Forgotten, ultimately concluding that it may be impossible to fulfill the legal aims of the Right to be Forgotten in artificial intelligence environments. Finally, this Article addresses the core issue at the heart of the AI and Right to be Forgotten problem: the unfortunate dearth of interdisciplinary scholarship supporting privacy law and regulation.

Download the article from SSRN at the link.

August 25, 2017 | Permalink

Sprague on Laws Affecting Work-Related Monitoring (A Survey)

Robert Sprague, University of Wyoming College of Business, is publishing Survey of (Mostly Outdated and Often Ineffective) Laws Affecting Work-Related Monitoring in volume 93 of the Chicago-Kent Law Review (2017). Here is the abstract.

This article reviews various laws that affect work-related monitoring. It reveals that most of our privacy laws were adopted well before smartphones and the Internet became ubiquitous; they still hunt for physical secluded locations; and, because they are based on reasonable expectations of privacy, they can easily be circumvented by employer policies that eliminate that expectation by informing workers they have no right to privacy in the workplace. This article concludes that the future — indeed the present — does not bode well for worker privacy.

Download the article from SSRN at the link.

August 25, 2017 | Permalink

Hartzog on The Inadequate, Invaluable Fair Information Practices @hartzog

Woodrow Hartzog, Northeastern University School of Law and College of Computer and Information Sciences; Stanford Law School Center for Internet and Society, has published The Inadequate, Invaluable Fair Information Practices at 76 Maryland Law Review 952 (2017). Here is the abstract.

For the past thirty years, the general advice for those seeking to collect, use, and share people’s personal data in a responsible way was relatively straightforward: follow the fair information practices, often called the “FIPs.” These general guidelines were designed to ensure that data processors are accountable for their actions and that data subjects are safe, secure, and endowed with control over their personal information. The FIPs have proven remarkably sturdy against the backdrop of near-constant technological change. Yet in the age of social media, big data, and artificial intelligence, the FIPs have been pushed to their breaking point. We are asking too much of the FIPs, yet they are far too entrenched and important to be abandoned. New privacy risks present an opportune moment to assess the state of the FIPs in the modern world and ask whether they are up to the task. This Essay is an attempt to identify the practical virtues and limitations of the FIPs in order to help privacy law evolve while retaining traditional notions of data accountability. I argue that while we cannot do without the FIPs, it is time for lawmakers to stake out new ground. They should pay more attention to things like anti-competitive behavior and the design of information technologies. The FIPs are necessary, but not sufficient. To make privacy law whole, the FIPs must be treated as one of several frameworks to protect our personal information and people's ability to consent to data practices must be treated as a finite resource.

Download the article from SSRN at the link.

August 25, 2017 | Permalink

Thursday, August 24, 2017

Campbell on Natural Rights and the First Amendment

Jud Campbell, University of Richmond School of Law, is publishing Natural Rights and the First Amendment in the Yale Law Journal (forthcoming). Here is the abstract.

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding-Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms as equivalent, together enshrining a freedom of expression. But others assert that the freedom of speech, unlike press freedom, emerged from the legislative privilege of speech and debate, thus providing more robust protection for political speech. This Article argues that Founding-Era elites shared understandings of speech and press freedoms, as concepts, even when they divided over how to apply those concepts. In particular, their approach to expressive freedom was grounded in a multifaceted understanding of natural rights that no longer survives in American constitutional thought. Speech and press freedoms referred, in part, to natural rights that were expansive in scope but weak in their legal effect, allowing for restrictions of expression to promote the public good. In this respect, speech and press freedoms were equivalent concepts with highly contestable implications that depended on calculations of the public good. But expressive freedom connoted more determinate legal protections as well. The liberty of the press, for instance, often referred specifically to the rule against press licensing, while the freedom of speaking, writing, and publishing ensured that well-intentioned statements of one’s views were immune from governmental regulation. In this respect, speech and press freedoms carried distinct meanings. Much of our modern confusion stems from how the Founders—immersed in their own constitutional language—silently shifted between these complementary frames of reference. This framework significantly reorients our understanding of the history of speech and press freedoms by recognizing the multifaceted meanings of these concepts, and it raises challenging questions about how we might use that history today. Various interpretive theories—including ones described as “originalist”—might incorporate this history in diverse ways, with potentially dramatic implications for a host of First Amendment controversies. Most fundamentally, however, history undercuts the Supreme Court’s recent insistence that the axioms of modern doctrine inhere in the Speech Clause itself, with judges merely discovering—not crafting—the First Amendment’s contours and boundaries.

Download the article from SSRN at the link.

August 24, 2017 | Permalink

Shnoor and Menashe on Balancing the Right to a Fair Trial Against Freedom of Expression in Israel

Boaz Schnoor, College of Law and Business, Ramat Gan Law School, and Doron Menashe, Sr., University of Haifa Faculty of Law, are publishing Sub Judice and Free Speech: Balancing the Right to a Fair Trial Against Freedom of Expression in Israel in volume 19 of the San Diego International Law Journal (2017). Here is the abstract.

One of the basic principles of criminal law is the right of a defendant to have his guilt determined by those appointed by law, and that the decision will be based only on admissible evidence that will be presented in court. Media publications regarding ongoing criminal proceeding, and reports that do not relate to what is happening within the court may undermine these principles and may tip the scales in the defendant's verdict. The sub-judice principle prohibits the media from publishing information that may alter the course and results of the trial. Its purpose is to ensure the defendants right not to have an unfair trial, due to a bias opinion of the judge in charge of the case. However, this principle seemingly violates two basic principles, namely the right to freedom of speech and the right for a public trial. The article will review comparative law such as Canada, England, France, Australia and more. In addition, the article will review a number of cases in Israeli case law that have referred to the principle of the sub-judice, and the influence of these publications - or their blatant attempt to influence the results of the trial. Furthermore, the writers will demonstrate two methods of balance between freedom of speech and the right of the accused to due process and presumption of innocence, as done in Britain and America, and show the huge gap between the two countries, so that in America, freedom of speech is protected, also given the risk of influencing jurors, and in Britain these publications are strictly prohibited in order to preserve the presumption of innocence. Nevertheless, the two approaches recognize the influence of the media to ongoing proceedings. The authors display a method according to which, any report regarding an ongoing criminal proceeding should be banned until the end of the trial. If there is a need for publication, the defendant must first be acquitted, and only then can publicity be allowed. But this model poses a problem, due to the risk of acquitting a possibly guilty defendant. However, if we cannot afford to take that risk, in order to protect the freedom of speech, how can we allow the risk of wrongful conviction of an innocent one for the same reason? This article proposes a new model, a revolutionary and restricted model. According to the model, the sub-judice rule will include specific prohibitions regarding evidence related to the offense that have not yet been brought before the court or are inadmissible, as well as the prohibition of publishing interviews with witnesses, litigants and experts who will report of the expected outcome of these testimonies. This new model will prevent a situation in which a trial is carried out by the media, and false convictions are made because of it. The model offers proper balance between the rights, such that also limits the violation of freedom of speech.

Download the article from SSRN at the link.

August 24, 2017 | Permalink

Hoofnagle on FTC Regulation of Cybersecurity and Surveillance @hoofnagle

Chris Jay Noofnagle, University of California, Berkeley, School of Information, and University of California, Berkeley, School of Law, is publishing FTC Regulation of Cybersecurity and Surveillance in The Cambridge Handbook of Surveillance Law (David Gray and Stephen Henderson, eds., Cambridge University Press 2017). Here is the abstract.

The Federal Trade Commission (FTC) is the United States’ chief consumer protection agency. Through its mandate to prevent unfair and deceptive trade practices, it both regulates surveillance and creates cybersecurity law. This chapter details how the FTC regulates private-sector surveillance and elucidates several emergent properties of the agency’s activities. First, private-sector surveillance shapes individuals’ reasonable expectations of privacy, and thus regulation of the private-sector has effects on the government as surveillant. The FTC’s activities not only serve dignity interests in avoiding commercial inference in one’s life, they also affect citizens’ civil liberties posture with the state. Second, surveillance can make companies directly liable (for intrusive web monitoring, for tracking people offline, and for installing malware) or indirectly liable (for creating insecure systems, for using deception to investigate, and for mediating the surveillance of others) under the FTC Act. Third, the FTC’s actions substitute plaintiffs’ litigation for privacy, as the class action is burdened in novel ways. Fourth, the FTC’s actions increase the quality of consent necessary to engage in surveillance, and in so doing, the FTC has made some kinds of surveillance practically impossible to implement legally. Finally, the FTC’s actions make companies more responsible for their surveillance technologies in several ways—by making software vendors liable for users’ activities, by imposing substantive security duties, and by narrowing internet intermediary immunity.

Download the essay from SSRN at the link.

August 24, 2017 | Permalink

Wednesday, August 23, 2017

Criminal Defamation Charge Against BBC Reporter Dropped

From the BBC: Criminal defamation charges have been dropped against reporter Jonathan Head. who could have been sentenced to years in a Thai prison had he been convicted. Mr. Head, BBC Southeast Asia correspondont, had reported on a case in which foreign retirees had lost their properties to fraud. The trial against Mr. Head and one of the victims in the fraud case, Ian Rance, began yesterday. More here from the Guardian.

August 23, 2017 | Permalink

Monday, August 21, 2017

Fields on Campaign Speech and Discriminatory Intent

Shawn Fields, University of San Diego School of Law, has published Is it Bad Law to Believe a Politician? Campaign Speech and Discriminatory Intent as San Diego Legal Studies Paper No. 17-297. Here is the abstract.

In the forty years since Washington v. Davis, courts have struggled to articulate with any consistency an evidentiary standard for determining the existence of impermissible discriminatory motive. Though not required to do so, courts have often avoided considering any evidence of animus not contained within the official legislative or administrative record out of skepticism for the probative value of such “unofficial” statements. Lacking a coherent approach, courts have split on whether and to what extent statements made in the course of an election campaign should factor into discriminatory intent analysis. The 2016 presidential campaign has forced courts to squarely address this issue, as litigants challenging President Trump’s executive orders on immigration dredge up a trove of discriminatory and inflammatory statements made by candidate Trump. Curiously, the wealth of legal scholarship examining the contours of discriminatory intent analysis have largely ignored the relevance and propriety of campaign rhetoric as a permissible form of evidence in the analysis. This Article fills that gap. It proceeds by examining the five primary arguments against considering campaign statements as evidence of subjective animus, and illustrating why none of these arguments justify such a bright-line evidentiary bar. In short, traditional claims that campaign statements are of limited probative value address their evidentiary weight rather than their admissibility and fail to account for a court’s ability to discount the evidence as necessary. By adopting a more fact-specific, objective, and flexible approach to campaign statements, courts not only will more faithfully adhere to the spirit of Davis and its progeny, but will also be equipped to address the atypical case of a politician who speaks his discriminatory mind and then acts on it.

Download the article from SSRN at the link.

August 21, 2017 | Permalink

Hasen on Cheap Speech and What It Has Done To American Democracy @UCILaw

Richard L. Hasen, University of California, Irvine, School of Law, is publishing Cheap Speech and What It Has Done (to American Democracy) in the First Amendment Law Review. Here is the abstract.

In a remarkably prescient article in a 1995 Yale Law Journal symposium on “Emerging Media Technology and the First Amendment,” Professor Eugene Volokh looked ahead to the coming Internet era and correctly predicted many changes. In Cheap Speech and What It Will Do, Volokh could foresee the rise of streaming music and video services such as Spotify and Netflix, the emergence of handheld tablets for reading books, the demise of classified advertising in the newspaper business, and more generally how cheap speech would usher in radical new opportunities for readers, viewers, and listeners to custom design what they read, see, and hear, while concomitantly undermining the power of intermediaries including publishers and book store owners. To Volokh, these changes were exciting and democratizing. The overall picture he painted was a positive one, especially as First Amendment doctrine no longer had to deal with the scarcity of broadcast media to craft special First Amendment rules curtailing some aspects of free speech. As this article for a First Amendment Law Review symposium on “Fake News” argues, twenty-two years later, the picture of what cheap speech has already done and is likely to still do — in particular to American democracy — is considerably darker than Volokh’s vision. No doubt cheap speech has increased convenience, dramatically lowered the costs of obtaining information, and spurred the creation and consumption of content from radically diverse sources. But the economics of cheap speech also have undermined mediating and stabilizing institutions of American democracy including newspapers and political parties, with negative social and political consequences. In place of media scarcity, we now have a media firehose which has diluted trusted sources of information and led to the rise of “fake news” — falsehoods and propaganda spread by domestic and foreign sources for their own political and pecuniary purposes. The demise of local newspapers sets the stage for an increase in corruption among state and local officials. Rather than democratizing our politics, cheap speech appears to be hastening the irrelevancy of political parties by facilitating the ability of demagogues to secure support from voters by appealing directly to them, sometimes with incendiary appeals. Social media also can both increase intolerance and overcome collective action problems, both allowing for peaceful protest but also supercharging polarization and raising the dangers of violence in the United States. The Supreme Court’s libertarian First Amendment doctrine did not cause the democracy problems associated with the rise of cheap speech, but it may stand in the way of needed reforms. For example, in the campaign finance arena the Court’s doctrine and accompanying libertarian ethos may stymie efforts to limit foreign money flowing into elections, including money being spent to propagate “fake news.” The Court’s reluctance to allow the government to regulate false speech in the political arena could limit laws aimed at requiring social media sites to curb false political advertising. Loose, optimistic dicta in the Justice Kennedy’s majority opinion for the Court in 2017’s Packingham v. North Carolina case also may have unintended consequences with its infinitely capacious language about First Amendment protection for social media. In the era of cheap speech, some shifts in First Amendment doctrine seem desirable to assist citizens in ascertaining truth and bolstering stabilizing institutions. Nonetheless, it is important not to fundamentally rework First Amendment doctrine, which also serves as a bulwark against government censorship and oppression potentially undertaken in an ostensible effort to battle “fake news.” Non-governmental actors, rather than the courts and government, are in the best position to ameliorate some of the darker effects of cheap speech. Social media hosts and search sites such as Facebook, Google, and Twitter can assist readers, viewers, and listeners in ferreting out the truth if there is the commercial will to do so. Consumer pressure may be necessary to get there, but it is not clear if consumers or shareholders will have the power to move dominant market players who do not want to be moved. Fact checks can also help. Subsidies for (especially local) investigative reporting can also help the problems of corruption and bolster the credibility of newspapers and other supports for civil society. But nothing is certain to work in these precarious times, and the great freedom of information which Volokh rightly foresaw in the era of cheap speech is coming with a steep price for our democracy.

Download the article from SSRN at the link.

August 21, 2017 | Permalink

Miller on Ad-Blocking in German and American Law

Russell Miller, Washington & Lee School of Law, has published Liberation, Not Extortion: The Fate of Internet Ad-Blocking in German and American Law as Washington & Lee Legal Studies Paper No. 2017-15. Here is the abstract.

Ad-blocking services allow individual users to avoid the obtrusive advertising that both clutters and finances most Internet publishing. Ad-blocking’s immense — and growing — popularity suggests the depth of Internet users’ frustration with Internet advertising. But its potential to disrupt publishers’ traditional Internet revenue model makes ad-blocking one of the most significant recent Internet phenomena. Unsurprisingly, publishers are not inclined to accept ad-blocking without a legal fight. While publishers are threatening suits in the United States, the issues presented by ad-blocking have been extensively litigated in German courts where ad-blocking consistently has triumphed over claims that it represents a form of unfair competition. In this article I survey the recent German ad-blocking cases and consider the claims publishers are likely to raise against ad-blocking in the imminent American litigation. I conclude that, when the American ad-blocking cases come, they are bound to meet with the fate they suffered in Germany. I argue that the relevant German and American legal frameworks reinforce a similar set of values, including: respect for individual autonomy; recognition of the broad social benefits ad-blocking can generate; and an insistence that publishers accept ad-blocking as part of the free market in which they must evolve and innovate in order to compete.

Download the article from SSRN at the link.

August 21, 2017 | Permalink

Friday, August 18, 2017

Comedian Dean Obeidallah Sues "Daily Stormer" For Defamation

From the New York Times: Comedian Dean Obedallah is suing the neo-Nazi website The Daily Stormer for defamation over its statement that Mr. Obeidallah was behind the May 2017 bombing at a stadium in Manchester, England, that killed more than 20 people.

More here from Forbes. 

The Daily Stormer went offline when it lost its hosting on GoDaddy and Google last week. It obtained a Russian host earlier this week, but has apparently lost that address as well. It is unclear whether the site now is available on the Internet. 

August 18, 2017 | Permalink