Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, June 6, 2018

Rolph and Douglas on Rebel Wilson's Pitch Perfect Defamation Victory @dkrolph @MikeCDouglas @RebelWilson

David Rolph, University of Sydney Law School, and Michael Douglas, University of Western Australia Law School, have published Rebel Wilson's Pitch Perfect Defamation Victory at 29 Entertainment Law Review 37 (2018). Here is the abstract.

Few successful defamation plaintiffs are awarded six figure defamation damages in Australia. This is principally because damages for non-economic loss in defamation claims — the principal, indeed usually the only, head of damages sought — are now capped under statute. Few high-profile celebrities sue for defamation to final judgment in Australian courts. So when the comedian and actress, Rebel Wilson, was recently awarded almost AUD 4.57 million damages by a judge of the Supreme Court of Victoria, the case is newsworthy and noteworthy. Wilson sued a number of related women’s magazine titles essentially over allegations that she serially lied about many aspects of her life. The award of damages to Wilson is the largest ever made by an Australian court for a defamation claim. Besides the record-breaking quantum, Wilson’s claim against Bauer Media is important because it is the first time the statutory cap on damages for non-economic loss — an important feature of the national, uniform defamation laws introduced a little over a decade ago —has been exceeded. It is also significant because not only is it one of the rare cases in Australia where damages for economic loss have been sought and granted, it is the first case in Australia where damages for economic loss have been calculated on the basis of loss of opportunity. Wilson v Bauer Media also raises some difficult doctrinal questions of the interaction between defamation law and conflict of laws, where an international celebrity sues locally for damage to reputation which, due to the "grapevine effect", occurs outside the jurisdiction.

Download the article from SSRN at the link.

June 6, 2018 | Permalink

Monday, June 4, 2018

Gilden on Sex, Death, and Intellectual Property @andrew_gilden

Andrew Gilden, Willamette University College of Law, is publishing Sex, Death, and Intellectual Property in the Harvard Journal of Law & Technology. Here is the abstract.

The role of intellectual property is changing. IP traditionally is characterized as providing economic incentives to invest in creative production or as a reward for intellectual labor, and accordingly IP laws typically are associated with the needs of corporate creators and celebrity artists. In an era of smartphones and social media, however, IP has become a tool for a diverse range of vulnerable individuals to assert autonomy within unequal and risky digital environments. This paper examines cases in which IP is not being used to fortify economic incentives or reward labor but instead as a way to manage boundaries around sensitive and intimate social activities. These include lawsuits to combat the nonconsensual dissemination of sexual imagery and lawsuits by families of deceased artists and public figures to shape the cultural memory of the deceased. IP theory has often resisted addressing questions of sexual autonomy, privacy, or family mourning, yet IP is playing an increasingly important role in mediating each. Many scholars have stressed that we no longer need IP laws to spur widespread creative activity in the social media era; nevertheless, the social, emotional, and economic stakes surrounding control over image, sounds, and text arguably have never been greater. This paper makes two main contributions. First, it shows that IP often provides an effective tool for managing personal and social boundaries and as a result reinforces autonomy, community, and kinship among the diverse group of individuals who become rights holders. Individuals are using the old tools of IP to tackle a new and different set of socioeconomic challenges. Second, as a normative matter, it argues that IP provides some important practical and conceptual advantages over other legal responses to sexual privacy and family mourning. IP delegates context-sensitive boundary-management decisions to individuals, families, and communities—as opposed to more top-down criminal or regulatory solutions—and can be transferred within communities and across generations—as opposed to more individualized tort and contract solutions. Although undeniably a break from traditional theory, IP can be a useful means of legally responding to emergent cultural vulnerabilities.

Download the article from SSRN at the link.

June 4, 2018 | Permalink

Wehbe on the Free Press and National Security: Renewing the Case for a Federal Shield Law @FirstAmendLRev ‏

Alan Wehbé is publishing The Free Press and National Security: Renewing the Case for a Federal Shield Law in volume 16 of the the First Amendment Law Review (2018). Here is the abstract.

Freedom of the press is a cherished freedom enshrined in the First Amendment and upheld in myriad contexts. However, under the prevailing case law and without a federal shield law, the executive branch may be able to “annex the journalistic profession as an investigative arm of government” to reveal its‘confidential’ sources as aid to prosecution. This would serve to chill the freedom of the press and conflicts with the spirit of the First Amendment. In many cases, courts have failed to extend the common law to such protection. The legislative branch should step in to make such protection clear. For example, in the field of national security, where the stakes are so high, the Government utilizes federal laws, such as the Espionage Act, to prosecute so state shield laws provide inconsistent and insufficient protection against federal prosecution. The case for a federal shield law is heightened in the matters of national security, which is different and where, arguably, the stakes are higher. Based upon the aforementioned discussion, this Article reinvigorates the argument in favor of a federal reporter’s shield law, specifically implemented as an evidentiary privilege under the Federal Rules of Evidence.

Download the article from SSRN at the link.

June 4, 2018 | Permalink

Friday, June 1, 2018

"The Fourth Estate": A Documentary Series About the New York Times @nytimes @Showtime @lizgarbus

The new series The Fourth Estate is now streaming on Showtime.  Here's a description of the show from the network's website.


This documentary series about The New York Times in the Trump era illuminates critical issues facing journalism today. A chief task for The Times, long considered the "newspaper of record," is to find the best way to accurately and honestly cover this unconventional president, even as he tries to undermine them. Through extraordinary access and exclusive interviews, Oscar® nominated filmmaker Liz Garbus chronicles the tenacious men and women in the trenches who are fighting for the freedom of the press and America's right to know.

June 1, 2018 | Permalink

Young on Reynolds v. Times Newspapers @hilaryanyoung

Hilary Young, University of New Brunswick, Faculty of Law, is publishing Reynolds V Times Newspapers in Landmark Cases in Defamation (forthcoming). Here is the abstract.

This is about the Reynolds v Times Newspapers case, which led to the creation of a fault-based defamation defence in England and abroad. It sets out the facts and judicial history of the case, then comments on its influence in England, in other common law countries and its likely future influence.

Dowload the essay from SSRN at the link.

June 1, 2018 | Permalink

Wednesday, May 23, 2018

Green on New Frontiers for the Derivative Work Right in Video Games @j_remy_green

J. Remy Green, Fried, Frank, Harris, Shriver, & Jacobsen, LLP, is publishing All Your Works Are Belong to Us: New Frontiers for the Derivative Work Right in Video Games in volume 19 of the North Carolina Journal of Law and Technology (2018). Here is the abstract.

In copyright law, the author of an original work has the exclusive right to prepare further works derivative of that original. Video game developers’ works are protected by the Copyright Act. As video games take advantage of more advanced technology, however, players are doing more creative, interesting, and original things when they play games. Certain things players do create independent economic value and are the kinds of acts of original authorship our copyright system is designed to encourage. However, since the author of the video game is entitled to the full panoply of rights under the laws of the American copyright regime, they own the exclusive right to prepare works “derivative” of that game. This Article has both descriptive and normative goals. Its descriptive goals are to outline the current legal trends in the video game space and to demonstrate the huge economic stakes at play. Its normative goals are to offer a number of different ways of explaining how derivative works of video games are created and to suggest several modes of understanding how cases where ownership of these works is disputed should be decided. These modes include philosophical thought experiments, critical analysis of what exactly a game is, analysis of what kind of game underlies the second order work in question, and application of the liability/property rule framework from law and economics literature.

Download the article from SSRN at the link.

May 23, 2018 | Permalink

Tuesday, May 22, 2018

Goold on the Lost Tort of Moral Rights Invasion @harvard_law

Patrick Russell Goold, Harvard Law School, is publishing The Lost Tort of Moral Rights Invasion in the Akron Law review. Here is the abstract.

Moral rights are often portrayed as an unwelcome import into U.S. law. During the nineteenth century, European lawmakers, influenced by personality theories of authorship, began granting authors rights of attribution and integrity. However, while these rights proliferated in Europe and international copyright treaties, they were not adopted in the United States. According to a common historical narrative, U.S. courts and lawmakers resisted moral rights because they were deemed incompatible with the copyright tradition of treating expressive works as alienable property. What little moral rights U.S. law provides today is thus seen as a necessary evil, grudgingly accepted, simply to comply with international obligations. This Article presents a history of moral rights protection that challenges, to a degree, that common historical narrative. The Article tracks how American courts adjudicated attribution and integrity disputes during the twentieth century. Doing so not only reveals that the American judiciary was more sympathetic to these claims than commonly appreciated, but, even more surprisingly, came close to developing a tort of moral rights invasion. While copyright historians know that courts have long provided proxy protection for moral rights under preexisting common law causes of action (e.g., defamation, unfair competition, privacy, etc.), what is not widely known is how frequently courts were willing to protect attribution and integrity interests directly under the banner of moral rights. This Article tells the story of how courts in the mid-twentieth century, applying state law, increasingly articulated a "sui generis tort" of moral rights invasion. It then proceeds to question why the moral rights tort stagnated and was forgotten about in the late twentieth century.

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

May 22, 2018 | Permalink

Green on Using Copyright as a Metric for Harm in "Revenge Porn" Cases @j_remy_green

J. Remy Green, Fried, Frank, Harris, Shriver & Jacobson, LLP, is publishing A (Nude) Picture Is Worth a Thousand Words — But How Many Dollars?: Using Copyright as a Metric for Harm in ‘Revenge Porn’ Cases in volume 45 of the Rutgers Law Record (2018). Here is the abstract.

So-called “Revenge Porn” — pornography published without the subject’s permission — is a growing issue. While much discussion exists about how best to outlaw the practice, less has been said about precisely how to measure the harm done. This paper is grounded in an in-depth analysis of the particular way that the Federal Sentencing Guidelines prioritize financial harms and non-financial harms, specifically looking at how many dollars of harm it takes to buy each additional sentencing point. I graph the enforcement priorities for financial and non-financial harm using the numbers federal agencies use for the value of a statistical life. Leveraging that analysis, I argue that the dollar sums in statutory damages under the Copyright Act provide a better mode of measuring than abstract dignitary and reputational harms more conventionally associated with “revenge porn.” I also argue that, because of the structure of the Federal Sentencing Guidelines (and likely many state analogs), using economic harm to describe harm is likely to result in those harms becoming higher on the list of agency enforcement priorities.

Download the article from SSRN at the link.

May 22, 2018 | Permalink

Wednesday, May 16, 2018

Marmor on Two Rights of Free Speech @CornellLaw

Andrei Marmor, Cornell University Law School, has published Two Rights of Free Speech at 31 Ratio Juris 139 (2018). Here is the abstract.

My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case.

The full text is not available for download from SSRN.

May 16, 2018 | Permalink

Smith on The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech

Tara A. Smith, University of Texas, Austin, is publishing The Free Speech Vernacular: Conceptual Confusions in the Way We Speak About Speech in volume 22 of the Texas Review of Law & Politics (2017). Here is the abstract.

In debates over the proper boundaries of freedom of speech, we are naturally alert to the meanings of pivotal concepts, such as “offensive” speech or “hate” speech. We argue over what constitutes “incitement” or “group libel.” Alongside such contested concepts, however, stand peripheral terms whose misuse can be every bit as influential but whose ramifications go unnoticed. I have in mind such terms as “absolute” and “exception.” Because these terms are not associated with particular ideological positions (it is not that those who invoke “exceptions” systematically support more freedom for political speech, or less, for instance), we tend to assume that they are neutral tools, innocuous features of the debate’s infrastructure. In fact, I shall argue, confusions concerning these seemingly incidental concepts impede clear thinking about how a legal system should treat speech. Indeed, they often lend the cover of respectability to unjustified restrictions of speech. In this paper, I will consider four such concepts: “absolute,” “exception,” “censorship,” and “freedom.” I will begin, in Parts I and II, by offering examples of each being misused and indicating the errors involved (treating the concepts in pairs because of their close relationships). Next, in Part III, I will consider the fallout. What harm do such confusions inflict? What does it matter if people aren’t meticulous about terminology? In Part IV, I will turn to the roots of these errors. To correct a mistake, it can be helpful to understand its underlying sources. Thus, I will ask, what deeper premises might foster these four confusions about speech? While a handful of ideas contribute, I will focus primarily on the particularly influential role of utilitarian thinking. As a preliminary, I should clarify the parameters of this discussion. In claiming that certain usages of terms reflect misconceptions, I am obviously relying on beliefs about the correct meanings of these four terms. A full defense of these meanings would require substantial examination in a separate paper of its own, however. My aim here is simply to indicate serious problems with the reigning conceptions. These should be visible even without a decisive vindication of the ultimately correct alternatives. Further, I should be forthright about my own views (particularly given their minority status). I believe that the right to free speech is absolute and admits of no exceptions, that censorship consists of government restrictions on an individual’s freedom of speech and that this freedom consists of the absence of others’ forcibly restricting one’s speech. This is not the thesis of this paper, however; thus, I will not offer a direct case for it here. Rather, my present aim is the more modest one of conceptual clean-up: I seek to carve more accurately the conceptual categories that inform our thinking about free speech, so as to help us reach valid conclusions about its boundaries. One need not sympathize with my larger views to be able to appreciate that clean-up is needed, for the field of debate is strewn with confusions, as we will see. And while my aims are relatively modest, the stakes are large. For as long as we labor under blurred conceptual boundaries, we will reach misguided conclusions and, consequently, we will protect speech that should not be protected and we will restrict speech that should not be restricted.

Download the article from SSRN at the link.

May 16, 2018 | Permalink

Kormych on The Information Law of Ukraine @nuoua_official

Borys Kormych, Odessa Law Academy, has published The Information Law of Ukraine.

The paper provides a general overview of the legal regulation of information relations in Ukraine. It focuses on the basic principles and structure of Ukrainian legislation in the field of information. The legal classification of information and basic approaches to secure the human rights towards information are also covered. The characteristics of regimes of information and understanding of information security are provided.

Download the article from SSRN at the link.

May 16, 2018 | Permalink

Tuesday, May 15, 2018

Bangkok Post's Editor Resigns Over Criticism of Thai Government, Citing Pressure From Paper's Board of Editors

Via the Guardian:  Umesh Pandey, who has been the editor of the Bangkok Post since 2016, says he has stepped down from that position under pressure from the Board of Editors because he will not "tone down" his criticism of the Thai government. The Guardian quotes him as saying, “When asked to tone down I did not budge and was blunt in letting those who make decisions know that I would rather lose my position than bow my head." The Guardian notes that many of the Bangkok Post's Board of Editors have close ties to the government.



May 15, 2018 | Permalink

Billah and Albarashdi on Fair or Free Use of Copyrighted Materials in Education and Research and the Limit of Such Use

Muhammad Masum Billah and Saleh Albarashdi, both of Sultan Qaboos University, have published Fair or Free Use of Copyrighted Materials in Education and Research and the Limit of Such Use at 17 Chicago-Kent Journal of Intellectual Property 422 (2018). Here is the abstract.

The concept of fair use, fair dealing, or free use of copyrighted works for education and research is incorporated in copyright laws around the world. This is to strike a balance between the private interests of copyright holders and the public interests of students and researchers to use the copyrighted materials in furthering their knowledge. While fair and free use of copyrighted materials for the purpose of study and research is favored and permitted under copyright laws almost everywhere in the world, the limit of such use is not clearly defined in these laws. This Article will attempt to determine the permissible limit for copying copyrighted materials without paying fees to or asking permission from copyright holders in light of the existing legal provisions and case law from around the world. To do so, this Article will first analyze the national and international legal provisions related to copyright exception for education and research. The Article will then analyze various conditions and factors and their relative importance to determine generally how much copying of copyrighted materials for education and research would be allowed without permission or license fees. While this Article concludes that it is impossible to clearly define the precise permissible limit of fair and free use, this Article recommends for a liberal interpretation of fair and free use exception especially when such use is for education and research.

Download the article from SSRN at the link.

May 15, 2018 | Permalink

Monday, May 14, 2018

Coenen on Free Speech and the Law of Evidence

Dan T. Coenen, University of Georgia Law School, is publishing Free Speech and the Law of Evidence in the Duke Law Journal (2018). Here is the abstract.

To what extent does the First Amendment limit the ability of prosecutors to offer evidence of a defendant’s past protected speech? As it turns out, the Supreme Court has touched on this question in only a handful of rulings, each of which it crafted to target only the distinctive facts of the case at hand. Many lower courts, however, have distilled from these decisions a sweeping, admissibility-favoring constitutional rule. According to that rule, the First Amendment imposes no limit on prosecutorial use of past-speech evidence—no matter how prejudicial—so long as it meets the minimum standard of evidentiary relevance. This approach is misguided. To begin with, it finds no support in the Court’s past decisions, which in fact favor, rather than disfavor, a meaningful judicial role in evaluating the use of past-speech evidence. Even more important, a hands-off stance clashes with long-honored free-speech-supporting constitutional policies. As a result, this Article calls for judicial recognition of a new set of First Amendment protections that operate whenever challenged past-speech evidence involves expression on a matter of public concern. This build-out of existing doctrine comports with the Court’s specialized protection of public-concern speech in a wide variety of settings. It also gains momentum from the Court’s jurisprudence regarding constitutional review of generally applicable laws—in this case, the generally applicable law of evidence. On close examination, the doctrine in this field, and the policies that underlie it, provide strong support for an approach that imposes both procedural and substantive constraints on the use of public-concern speech to secure criminal convictions. Such an approach is offered here.

Download the article from SSRN at the link.

May 14, 2018 | Permalink

Wednesday, May 9, 2018

Fagan on Systemic Social Media Regulation @EDHEC_BSchool

Frank Fagan, EDHEC Business School, is publishing Systemic Social Media Regulation in the Duke Law & Technology Review. Here is the abstract.

Social media platforms are motivated by profit, corporate image, long-term viability, good citizenship, and a desire for friendly legal environments. These managerial interests stand in contrast to the gubernatorial interests of the state, which include the promotion of free speech, the development of e-commerce, various counter terrorism initiatives, and the discouragement of hate speech. Inasmuch as managerial and gubernatorial interests overlap, a self-regulation model of platform governance should prevail. Inasmuch as they diverge, regulation is desirable when its benefits exceed its costs. An assessment of the benefits and costs of social media regulation should account for how social facts, norms, and falsehoods proliferate. This Article sketches a basic economic model. What emerges from the analysis is that the quality of discourse cannot be controlled through suppression of content, or even disclosure of source. A better approach is to modify, in a manner conducive to discursive excellence, the structure of the forum. Optimal platform architecture should aim to reduce the systemic externalities generated by the social interactions that they enable, including the social costs of unlawful interference in elections and the proliferation of hate speech. Simultaneously, a systemic approach to social media regulation implies fewer controls on user behavior and content creation, and attendant First Amendment complications. Several examples are explored, including algorithmic newsfeeds, online advertising, and invited campus speakers.

Download the article from SSRN at the link.

May 9, 2018 | Permalink

Monday, May 7, 2018

Hughes On Actors As Authors in American Copyright Law @LoyolaLawSchool

Justin Hughes, Loyola Law School, Los Angeles, is publishing Actors as Authors in American Copyright Law in volume 51 of the Connecticut Law Review (2018). Here is the abstract.

Among the different kinds of works eligible for copyright, audiovisual works are arguably the most complex, often involving scores of contributors – screenwriters, directors, actors, cinematographers, producers, set designers, costume designers, lighting technicians, etc. Some countries expressly recognize which categories of these contributors are entitled to legal protection, whether copyright, ‘neighboring rights,’ or statutory remuneration. But American copyright law does not. Given that the complex relationship among these creative contributors is usually governed by contract, there is – for such a large economic sector – relatively little case law on issues of authorship in audiovisual works. This is especially true on the question of dramatic performers as authors of audiovisual works. This Article provides the first in-depth exploration of whether, when, and how actors are authors under American copyright law. After describing how case law, government views, and scholarly commentary support the conclusion that actors are authors, the Article turns to the strange saga of the Ninth Circuit’s 2015 en banc Garcia v. Google decision – a decision more about fraud and fatwas than clear conclusions on how copyright law applies to acting. The Article then uses some simple thought experiments to establish how dramatic performers generally meet both the Constitutional and statutory standard for “authorship.” Finally, the Article reviews the various filters that prevent actors-as-authors legal struggles and how, when all else fails, we can consider actors as joint authors of the audiovisual works embodying their dramatic performances.

Download the article from SSRN at the link.

May 7, 2018 | Permalink

Friday, May 4, 2018

Lasson on The Decline of Free Speech on the Postmodern Campus: The Troubling Evolution of the Heckler's Veto

Kenneth Lasson, University of Baltimore School of Law, is publishing The Decline of Free Speech on the Postmodern Campus: The Troubling Evolution of the Heckler's Veto in the Quinnipiac Law Review. Here is the abstract.

The Twenty-First Century has presented new challenges to the traditional ways that free speech in America has been encouraged and protected. While the right to express one’s opinions has become increasingly problematic in society at large, it is particularly imperiled in the very places that pride themselves as being open marketplaces of ideas – on college and university campuses. Today we’re faced with numerous campus speech codes that substantially limit First-Amendment rights. They are ubiquitous and often cavalierly invoked. For civil libertarians the good news is that not one of the few such codes that have been tested in court has been found constitutional; the bad news is that few have been tested. Moreover, the current codes come with new catch-phrases like “trigger warnings” and “safe spaces” and “cultural appropriation” – all calculated in one way or another to shelter students and others from the honest give-and-take of discussion and debate about topics that might be controversial. Those with opinions that might challenge campus orthodoxies are rarely invited, and often disinvited after having been scheduled, or shouted down or otherwise disrupted. When protestors embroil visiting speakers, or break in on meetings to take them over and list demands, or even resort to violence, administrators often choose to look the other way. Students have come to take it for granted they will face little or no discipline for such disorderly conduct. The so-called heckler’s veto, once rarely invoked, is now commonplace. In popular parlance, the term is used to describe situations where hecklers or demonstrators are able to silence a speaker with little or no intervention by the law. In many cases the police arrest the speaker (not the heckler) for disturbing the peace. Although a number of courts have backed them up, case law over the years regarding heckler’s vetoes has been mixed: some decisions say that the speaker’s actions cannot be pre-emptively stopped for fear that hecklers will interrupt, but others assert that in the face of impending violence, authorities can quell the hecklers by forcing the speaker to stop. The latter-day dilution of free speech has been generated at least in part by the rise of postmodernism. While encompassing a broad range of ideas, that phenomenon is generally defined by skepticism, irony, or distrust towards traditional narratives, ideologies, and Enlightenment rationality, including various perceptions of human nature, morality, social progress, objective reality, absolute truth, and the whole concept of reasoned discourse. Instead, postmodernism asserts that knowledge and truth are products of unique social, historical, or political interpretations. On the other hand, postmodernism itself is difficult to define because to do so would violate its proponents’ premise that there are no definite terms, boundaries, or absolute truths. Over the past few years scholars of note have come to espouse distinctly opposing views regarding the rights and responsibilities of colleges and universities toward their students regarding freedom of speech on campus. This article traces the evolution of the case law surrounding hecklers’ vetoes, examines the erosion of free speech over the past half-century (particularly analyzing the debates among scholars about the causes and effects of postmodernism), and suggests ways by which speech can be protected on the contemporary campus without offending traditional Constitutional principles.

Download the article from SSRN at the link.

May 4, 2018 | Permalink

Chen and Marceau on Developing a Taxonomy of Lies Under the First Amendment

Alan K. Chen and Justin F. Marceau, both of the University of Denver College of Law, have published Developing a Taxonomy of Lies Under the First Amendment at 89  Colorado Law Review 655 (2018). Here is the abstract.

In previous work, we argued that the First Amendment limits the power of government to regulate lies that, paradoxically, promote the democracy and truth-finding functions of free speech. See Alan K. Chen & Justin Marceau, High Value Lies, Ugly Truths, and the First Amendment, 68 VAND. L. REV. 1435 (2015). In doing so, we claimed that the Supreme Court had previously protected lies solely to avoid chilling truthful speech, and not because they might have intrinsic value in our constitutional democracy. In that work, we did not fully address a related question – under what circumstances are lies subject to valid government regulation because they cause material harm or yield material gains to the speaker. What harms and benefits count to disqualify a lie from first Amendment coverage? Contemporary controversies about the role of falsehoods in our democracy, ranging from investigative deceptions to facilitate undercover investigations by activists on both the left and the right, to a Presidential campaign filled with claims that both major party candidates were liars, to an apparent epidemic of fake news stories on social media, suggest that there exists some urgency to further define the contours of the First Amendment’s protection of lies. The Supreme Court’s fractured decision in United States v. Alvarez offers some clues, but does not elaborate sufficiently to explain the boundaries of constitutional protection for lies. For instance, Justice Kennedy’s plurality opinion distinguished laws that regulate lies because those falsehoods cause some form of “legally cognizable harm” from laws that regulate lies without reference to such harms. In addition, Justice Kennedy notes that one of the flaws of the Stolen Valor Act was that it did not limit criminal liability to those who lied about military honors to gain a “material advantage.” Similarly, in his concurring opinion, Justice Breyer observed that the saving feature of most statutory and common law provisions prohibiting lies was that they typically require “proof of injury.” But these limiting principles are stated at too great a level of generality to be useful. All lies cause some harm to the listener or produce some benefit to the speaker. The harm or benefit might often be largely abstract, symbolic, or psychological, but there is still a harm or a benefit. Indeed, all of the Court’s opinions in Alvarez acknowledge there is some harm associated with lies told about earning military honors, including a general dilution of the prestige associated with such honors, and there was some benefit to Alvarez in telling the lie to his local, political constituents. Yet six of the current eight Justices agreed that the lie in question fell within the protections of the First Amendment. In this article, we explore what the Alvarez Court did not. We set out some general parameters to guide courts in determining whether the harms or gains resulting from a particular lie are sufficiently material to justify excluding the lie from First Amendment coverage. Some cases are easy even under existing doctrine, before and after Alvarez. Perpetrating a fraud to persuade a person to give away money unequivocally causes both harm to the victim and material gain to the speaker, both of which provide a sufficient state interest to allow punishment of the lie. But do other types of more intangible benefits to the liar count as material gains under Alvarez? A lie might bring a feeling of satisfaction from having fooled another. What if lying makes one feel better about her place in the world? What if it enhances one’s political agenda, providing benefits to one’s psyche and self-esteem? May the state proscribe a lie that leads to information used in an award-winning piece of investigative journalism because it yielded a material gain to both author and publication? What about a lie that generates favorable publicity, which then leads to more donations to an advocacy group with which the liar is affiliated? And in the context of political campaigns, what about a lie designed to get a voter to favor a particular candidate or ballot measure? For that matter, should lies on political topics receive more or less protection because of the context? Does the motive for the lie matter? Is a lie designed to produce truth within the ambit of free speech doctrine even if it causes harm or produces benefits to the liar? Ultimately, we argue that many lies will be protected even though they will produce some benefit to the speaker and some harm to the listener. Lies that are consistent with the values and goals of free speech will receive the most protection. Some benefit-producing and harm-causing lies that are largely worthless, as with the lie in Alvarez, will also be protected. There may need to be a middle category of lies that receive some protection, but may be regulated as long as the state meets some form of intermediate scrutiny. And those lies that cause tangible harm or produce material benefits in contexts that are divorced from the underlying purposes of free speech theory will not be protected, and indeed not covered by the First Amendment at all.

Download the article from SSRN at the link.

May 4, 2018 | Permalink

Wednesday, May 2, 2018

From the Globe and Mail: Reporters Killed in the Line of Duty 2017-2018

The Globe and Mail has provided a list of members of the media killed in the line of duty in 2017/2018. Link here.

May 2, 2018 | Permalink

Monday, April 30, 2018

Oxford Programme in Comparative Media Law and Policy Publishes Study in World Trends in Freedom of Expression and Media Development @Oxford_MediaLaw

From the Oxford Programme in Comparative Media Law and Policy:



We are delighted to announce the publication of UNESCO’s flagship study, World Trends in Freedom of Expression and Media Development. The lead authors of this report include Nicole Stremlau (University of Oxford and University of Johannesburg), Iginio Gagliardone (University of Witwatersrand) and Monroe Price (University of Pennsylvania), in consultation with a research team that spanned 5 continents. The study was a major undertaking, charting recent trends in global media and communications, including the rise in algorithmic pluralism, the increasing polarization of the public sphere, growing inequalities, and the role played by private spaces for expression (such as social media platforms) in shaping public debates. The publication is available for download here.  Regional reports, including studies on the Arab world, Africa, Western Europe and North America, Asia Pacific, and Central and Eastern Europe will be published on the same website shortly.  
The publication comes at a timely moment and will be launched at various events on May 3rd, World Press Freedom Day, including at UN Headquarters in New York.  The session will be opened with an address from the UN Secretary General, and panellists will include Miroslav Lajcak, President of the 72ndsession of the UN General Assembly; Alison Smale, Under Secretary General for Global Communications; Steve Coll, Dean of Columbia School of Journalism; Francois Delattre, Permanent Representative of France to the UN; and Nicole Stremlau, as lead researcher of the publication.  If you are in New York and would like to join us for this event, please RSVP here.  

April 30, 2018 | Permalink