Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, January 22, 2016

Hunter and Lastowka on BarbieTM as a Subject of IP Law

Dan Hunter, Swinburne Law School and New York Law School, and Greg Lastowka, Rutgers Law School, have published BarbieTM at 18 Tulane Journal of Technology & Intellectual Property 113 (2015). Here is the abstract.

Intellectual property laws are the means by which corporations allow access to their products. Mattel Inc.’s Barbie doll is highly dependent on the intellectual property system, and this Essay provides the first serious account of the development of Barbie as an object of intellectual property. It demonstrates the significance of Barbie as an intellectual property object, and it traces how intellectual property laws emerged as such a powerful technology of control in the period from Barbie’s birth in 1959 to the present. The Essay also shows that the great unrecognized feature of the intellectual property system is its ability to manipulate desire.

Download the essay from SSRN at the link.

January 22, 2016 | Permalink

Thursday, January 21, 2016

Rolph on Anonymity and Defamation in Australian, English, and Canadian Cases

David Rolph, University of Sydney Faculty of Law, has published Anonymity and Defamation in Secrecy, Law and Society (G. Martin, R. Scott Brady, and M. Kumar, eds. London, UK: Routledge, 2015). Here is the abstract.

Ordinarily, a plaintiff in a defamation claim is not, and does not seek to be, anonymous. The nature of the interest protected by the tort of defamation - reputation - is indelibly public, being what other people think of the plaintiff. To vindicate the plaintiff's reputation in a defamation action requires the plaintiff to be named. Increasingly, however, there are cases in which plaintiffs in defamation cases seek, and, in some cases, are granted, anonymity. This chapter explores the paradox of the anonymous defamation plaintiff. It focuses on recent Australian, English and Canadian cases, analysing the possible reasons for making defamation plaintiffs anonymous, noting particularly their use in cases involving social media and where both reputation and privacy are arguably implicated. It also considers the consequences of making defamation plaintiffs more anonymous routinely, particularly for the principle of open justice and for fundamental principles of defamation law.

Download the essay from SSRN at the link.

January 21, 2016 | Permalink

Call For Applications, 2016 Annenberg-Oxford Media Policy Summer Institute

From the Center for Global Communications Studies, the Annenberg School for Communications, University of Pennsylvania, and the Programme in Comparative Media Law and Policy, University of Oxford Centre for Socio-Legal Studies




The Center for Global Communication Studies at the Annenberg School for Communication, University of Pennsylvania and the Programme in Comparative Media Law and Policy (PCMLP) at the University of Oxford’s Centre for Socio-Legal Studies are pleased to invite applications to the 18th annual Annenberg-Oxford Media Policy Summer Institute, to be held from Monday, June 27 to Friday, July 8, 2016 at the University of Oxford.

For seventeen years, the Institute has brought together top early career communications scholars, media lawyers and regulators, internet governance experts, and freedom of expression and human rights activists from countries around the world to discuss the effects of technology and policy from a global and multidisciplinary perspective. The Summer Institute provides participants with an intensive two week interdisciplinary curriculum that combines expert instruction from media policymakers and scholars with hands-on activities such as stakeholder mapping, policy analysis, group case studies, and participant presentations.

The 2016 Annenberg-Oxford Summer Institute seeks applicants whose research or work is related to the relationship between international media laws and national jurisdictions, online censorship and surveillance, the role of the media in political change and conflict, strategic communications and propaganda, online extremism and social media, and global internet governance processes. Applications are welcomed from students studying communications, sociology, political science, international relations, area studies, anthropology, information studies, and  related disciplines. Practitioners working in media, law, policy, regulation, and technology are also encouraged to apply.

Preparing, motivating, and supporting students and practitioners who aspire to pursue a career in media policy, the Annenberg-Oxford Institute endeavors to broaden and expand the pool of talented young scholars engaged in media studies and to connect these individuals to elite scholars and practitioners from around the world. The Institute’s alumni are a vibrant group who continue to engage in the program, collaborate through network ties, and have become leaders at the top national and international nonprofits, advocacy organizations, government agencies, corporations, and academic institutions. Recent past Institutes have included participants from India, Kenya, Brazil, the Philippines, Jordan, Turkey, Pakistan, China, Italy, Israel, Colombia, Iran, Myanmar, South Sudan, and Nigeria.

The application for the 2016 Summer Institute is now open and can be found here. The deadline for all applications is Monday April 4, 2016 at 5:00PM EST. Applications will be reviewed on a rolling basis before the deadline, so please submit as soon as possible. Several partial scholarships are available to top applicants. For more information please see our FAQ page.

January 21, 2016 | Permalink

Cohen-Almagor on The Charlie Hebdo Affair: Between Speech & Terror

Raphael Cohen-Almagor, University of Hull, is publishing The Charlie Hebdo Affair: Between Speech & Terror in The Critique's Great War Series Part II: Charlie Hebdo, Free Speech & Religious Violence, 2016. Here is the abstract.

John is standing in the city square and sings loudly. He holds a baseball bat and carries a big sign that says: “I dare you to criticize my singing”. John is 2 meter tall and his physics suggests that he spends many of his free hours in a gym. It seems he enjoys many free hours. The expression on his face leaves little doubt as to the likely consequences of such a dare. You have the freedom and choice to ridicule him, even more so because you do find his singing most disturbing. Still, would you dare him? The Charlie Hebdo affair has brought to the fore four major issues: [1] Freedom of expression and offence [2] The fallacy of universal liberalism [3] Globalization [4] Sombre yet sober thoughts about the era in which we live. I analyse the terror attack on the Charlie Hebdo offices through several prisms: freedom of expression; the principle of profound offence; the fallacy of universal liberalism; globalisation, and the era in which we live of violence and terror. It is argued that after the violent episodes of “The Satanic Verses”, The Danish Cartoons and the Hebdo Cartoons we know full well that freedom of speech has a price. Responsible people should weigh the consequences of their conduct – action and speech. We should learn from these affairs, take offence seriously, acknowledge the fallacy of universalism and the reality of globalisation where speech in a liberal part of the world may provoke negative and violent reaction worldwide. We should fight for our principles while being cognizant of the price tag which might be high and bloody. And the price would not necessarily be paid only by the speaker. The speaker also endangers others. Responsible speakers should ask themselves whether their struggle to express outrageous ideas freely justifies putting other people’s lives as risk. Our freedoms should always be tempered by responsibility.

Download the essay from SSRN at the link.

January 21, 2016 | Permalink

Wednesday, January 20, 2016

Voss on EU Data Privacy Law After the Google Spain "Right to Be Forgotten Ruling" and the Paris Terrorist Attacks

W. Gregory Voss, Toulouse Business School, is publishing After Google Spain and Charlie Hebdo: The Continuing Evolution of European Union Data Privacy Law in a Time of Change in volume 71 of the Business Lawyer (2015/2016). Here is the abstract.
This article investigates various developments over that year that helped (or are helping) reshape European Union data privacy law, building around two important events: the Court of Justice of the European Union's Google Spain decision, applying a form of a "right to be forgotten," and the Paris terrorist attacks on the satirical journal Charlie Hebdo in January 2015 after which additional security measures involving websites and surveillance in France were adopted and advances on an EU directive on PNR data were made. The EU member state court decisions that came in the wake of the Google Spain decision and that give a right to individuals in the EU to have certain search engine results delisted, which raise issues for Internet search engines, publishers of information, and potentially other Internet intermediaries, are discussed, as are Google’s attempts to come to terms with the Google Spain decision. In addition, this article covers the continuing EU member state data protection agency enforcement action on Google's privacy policy, that were detailed in the author’s prior article – "European Data Privacy Law Developments," with lessons being drawn for businesses regarding privacy policies and data protection compliance generally. The surveillance measures discussed apply to electronic and other communication methods and introduce possibilities in France for mass data collection. Thus, the French legislation adopted in part in reaction to terrorist attacks, described by some as analog to the U.S. Patriot Act – evidences modifications related to security affecting the business legal environment for internet and telecommunications companies and others. Similarly, EU efforts to allow greater passenger data sharing following the Charlie Hebdo attacks also show the continuing tension between data privacy – considered a fundamental right in the EU – and security. Finally, ongoing work on the European Union data protection law reform – which will apply to non-European companies offering goods or services to individuals in Europe or monitoring their behavior – is detailed.
Download the article from SSRN at the link.

January 20, 2016 | Permalink

Sag on IP Litigation in United States District Courts, 2015

Matthew Sag, Loyola University Chicago School of Law, has published IP Litigation in United States District Courts - 2015 Update. Here is the abstract.

In a previous paper, "IP Litigation in United States District Courts: 1994 to 2014", I undertook a broad-based empirical review of Intellectual Property litigation in U.S. federal district courts from 1994 to 2014. This brief update extends that data to include the year 2015. This update contains new data on: (1) the overall state of copyright, patent and trademark litigation, (2) copyright litigation and the John Doe phenomenon, (3) the continuation of the patent litigation explosion and (4) the geographic distribution of copyright, patent and trademark litigation. This Update is not intended as a stand-alone article, it should be read in conjunction with the previous paper.

Download the article from SSRN at the link.

January 20, 2016 | Permalink

Rowbottom on the Campbell Case and the Use of Privacy Law to Constrain Media Power

Jacob H. Rowbottom, Oxford University Faculty of Law, is publishing A Landmark at a Turning Point: Campbell and the Use of Privacy Law to Constrain Media Power in volume 7 of the Journal of Media Law (2015). Here is the abstract.

This article argues that the decision in Campbell can be seen as a response to long-term concerns about the abuse of media power. After outlining some of the key developments in debates about privacy law, the article considers the features that distinguish the media as powerful institutions. It will be argued that the focus on media power has shaped the doctrine of misuse of private information, for example in expanding the scope of the tort and focusing on the public interest as the main defense. The decision in Campbell arrived at a moment when the communications environment was about to change dramatically. Since Campbell, the use of social media and the opportunities to share user-generated content has given many people the capacity to bring private facts to a large audience. The article will consider whether the Campbell tort remains applicable in the case of non-powerful publishers and looks at alternative ways to protect privacy.

Download the article from SSRN at the link.

January 20, 2016 | Permalink

El Ghoul, Guedhami, Nash, and Patel on the Role of the Media in Corporate Social Responsibility

Sadok El Ghoul, University of Alberta, Campus Saint-Jean, Omrane Guedhami, University of South Carolina, Moore School of Business, Robert C. Nash, Wake Forest University, and Ajay Patel, Wake Forest University, School of Business, have published New Evidence on the Role of the Media in Corporate Social Responsibility. Here is the abstract.

Prior research suggests that the media plays an important information intermediary role in capital markets. We investigate the role of the media in influencing firms’ engagement in corporate social responsibility (CSR) activities. Using a large sample of 4,453 unique firms from 53 countries over the period 2003 to 2012, we find strong evidence that firms engage in more CSR activities if located in countries where the media has more freedom. This relation is robust to using various proxies for media freedom and an alternative source of CSR data. In additional analyses, we find that the positive relation between media freedom and CSR engagement is stronger for better governed firms and for larger firms. Since the media have the ability to impact reputational capital, we conclude that media freedom affects firms’ incentives to engage in costly CSR activities.

Download the article from SSRN at the link.

January 20, 2016 | Permalink

Tuesday, January 19, 2016

McPeak On Social Media, Smartphones, and Proportional Privacy in Civil Discovery

Agnieszka McPeak, University of Toledo College of Law, has published Social Media, Smartphones, and Proportional Privacy in Civil Discovery at 64 University of Kansas Law Review 235(2015). Here is the abstract.


At its core, the discovery process in civil litigation relies on a balance between open access to information and protections against over-reaching. Although broad discovery is favored, courts simultaneously warn that the civil discovery process is not meant to be a fishing expedition. Thus, the value of achieving justice through complete and thorough access to information is counter-balanced by equally important limiting principles. These limiting principles include restrictions based on relevance, burden, expense, embarrassment, privilege, and proportionality. Essentially, these limiting principles draw on an important societal value: privacy. Privacy is a core concept that underlies the civil discovery rules, and it is one that courts must return to when resolving discovery disputes over digital data compilations. These compilations, particularly when viewed in the aggregate, present a detailed mosaic of one’s personal life. The result is a highly revealing portrait of personal details that implicate individual privacy rights. In some cases, discovery of the private portions of social media accounts or the contents of a personal smartphone should be limited based on privacy concerns. These privacy concerns can best be addressed as part of the proportionality analysis for defining the limits of civil discovery. The 2015 amendments to Rule 26 of the Federal Rules of Civil Procedure emphasize a proportionality inquiry as a key limit to discovery: the information sought must be proportional to the needs of the case. Although this test expressly considers the financial burden and expense of discovery, “burden” should go beyond mere financial considerations and instead encompass concepts like the privacy burden. Thus, this article proposes that the non-pecuniary burden on privacy should be factored into the proportionality analysis. By recognizing the need for proportional privacy, courts can draw meaningful boundaries to define the scope of discovery, effectively disaggregating digital data compilations to prevent overly intrusive discovery. Other tools within the court’s arsenal, such as protective orders, should be used more liberally to limit access to entire mosaics of highly personal information. This article defines discovery of digital data compilations, using private social media account contents and personal smartphones in ‘bring your own device’ workplaces as primary examples, and explains the historical development of civil discovery under the Federal Rules of Civil Procedure through the 2015 amendments. It also summarizes general principles of privacy law and existing discovery decisions as to social media accounts and smartphones, with an analysis of the intersection between privacy and discovery. Finally, this article lays out the mechanisms by which privacy protection can serve as an additional guide for defining the scope of civil discovery, particularly through examining privacy burdens as a factor in the proportionality test.


Download the article from SSRN at the link.

January 19, 2016 | Permalink

Appellate Court: Terrorism Act 2000, Section 7, Violates ECHR, Article 10

A British Court of Appeals has ruled that the Terrorism Act 2000, Section 7, violates Article 10 of the European Convention on Human Rights (freedom of expression). Said the court, "In the end, the incompatibility issue has been narrowly refined to the question of whether...the Schedule 7 stop power, if used in respect of journalistic information or material, is incompatible with article 10 in that it is not "prescribed by law" as required by article 10(2). "

The ruling came in the case of David Miranda, who was detained by police at Heathrow Airport in 2013. They subsequently examined his laptop, which contained encrypted files prepared by journalist Glenn Greenwald, who had been in contact with Edward Snowden. The UK government argued that the files contained information that was vital to national security. Mr. Miranda and the Guardian, which paid for his trip, maintained that the police examination of the files violated press freedom.  Mr. Miranda tweeted that the ruling shows that "Journalism isn't terrorism."

Read the ruling here.

Read the European Convention on Human Rights, Article 10, here.

January 19, 2016 | Permalink

Sunday, January 17, 2016

Garry Wills On "Spotlight"

In the New York Review of Books, Garry Wills on the film "Spotlight," reporters, and journalism's duty to society. There are several aspects to this story of child abuse, as Mr. Wills notes, and identifying heroes in the newsroom is more difficult than one might think.

January 17, 2016 | Permalink

Thursday, January 14, 2016

McIntyre On Implementing Information Privacy Rights In Ireland

T. J. McIntyre, UCD Sutherland School of Law, has published Implementing Information Privacy Rights in Ireland in International Human Rights: Perspectives From Ireland (Dublin: Bloomsbury, 2015). Here is the abstract.

This chapter examines the reception of international human rights norms on privacy into Irish law. It looks at the interaction between the domestic constitutional right to privacy and privacy rights under the European Convention on Human Rights and the Charter of Fundamental Rights and identifies factors which have led to international norms having limited influence in the Irish legislature and courts. It discusses in particular the way in which surveillance practices have been concealed from public view - by using surveillance for intelligence rather than evidential purposes the state has succeeded in avoiding scrutiny of a number of practices of dubious legality and has evaded the application of ECHR norms. The chapter then assesses recent developments - including the growth of Ireland as a technology industry hub and the influence of cases such as Schrems and Digital Rights Ireland - which are increasingly making Ireland a key jurisdiction in debates over surveillance and access to user data. It also assesses the growing role of the Charter of Fundamental Rights in this area, examining the ways in which it expands on the ECHR right to privacy and the tactical and strategic advantages it gives to litigants.

Download the essay from SSRN at the link.

January 14, 2016 | Permalink

Bridy on Notice Failures in Copyright Law

Annemarie Bridy, University of Idaho College of Law and Stanford University Center for Internet and Society, is publishing Three Notice Failures in Copyright Law in the Boston University Law Review. Here is the abstract.
In Notice Failure and Notice Externalities, Peter Menell and Michael Meurer explore how notice failures resulting from the fuzzy boundaries of intellectual property entitlements produce negative externalities for developers of new resources, particularly in the information technology sector, where the problem of uncertain patent scope is widely recognized. This article takes a different tack on notice failures and their costs. Shifting focus from resource development to rights enforcement, specifically online anti-piracy enforcement, it considers the nature, effects, and means of correcting three instances of notice failure in copyright law. The first two instances — “red flag” knowledge under the Digital Millennium Copyright Act (DMCA) and ex parte domain name seizures under the Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act — involve a legislative failure to appreciate that notice is necessary for the production of predictable and fair legal outcomes. The third instance of notice failure — injunctions against nonparty online intermediaries in civil “pirate site” cases — involves a judicial failure to appreciate that notice alone does not give courts jurisdiction over strangers to the litigation before them. Each of these notice failures is associated with a different aspect of copyright enforcement in the digital environment. All of them raise operating costs and increase legal risk for a wide range of online intermediaries, including search engines, cloud storage services, social media platforms, domain name registrars, payment processors, ad networks, and content delivery networks (CDNs).
Download the article from SSRN at the link.

January 14, 2016 | Permalink

Wednesday, January 13, 2016

Hoofnagle and Meleshinsky on Native Advertisement and Endorsement

Chris Jay Hoofnagle, School of Information, University of California, Berkeley, and School of Law, Berkeley Center for Law & Technology, and Eduard Meleshinsky, Bryan Schwartz Law, have published Native Advertising and Endorsement: Schema, Source-Based Misleadingness, and Omission of Material Facts in Technology Science #2015121503 (December 15, 2015). Here is the abstract.

Native advertising is the new term for “advertorials,” advertisements disguised as editorial content. Modern native advertising started in the 1950s, but its first uses were clearly signaled to the consumer. This paper explains why consumers might be misled by advertorials — even when labeled as such — when advertising material has elements of editorial content. Results summary: We surveyed consumers (N=598) with a realistic, labeled advertorial embedded in a blog. We found that just over one-quarter of respondents (27%) thought that the advertorial was written by a reporter or an editor. We find that labeling — even using a “sponsored content” disclosure — is insufficient to disabuse a significant minority of consumers about the provenance of the advertising material. Our findings are not generalizable, since we targeted the survey to internet users who appeared on marketing lists derived from behavioral tracking. However, our findings are compatible with those of other researchers who suggested that in addition to initial disclosures, elements in the advertorial itself must also signal to the consumer that this may be commercial material. While the advertorial we tested was a story about the potential of abuse of diet pills, the writing made dramatic claims about the effectiveness of named products for weight loss and included a portrait replicated from a real advertisement appearing in a health magazine. We found that merely using a blue background to frame the endorser’s portrait led many respondents to think her to be a medical expert. Traditionally, the appearance of a lab coat or stethoscope has signaled a medical expert endorsement, something subject to greater regulation. Our findings point to consumers using subtle clues about context to associate an endorser with an expert profession. We conclude by discussing regulatory options for the FTC, including a ban on advertorials, enhanced disclosure requirements, and approaches that put the burden on publishers to show that advertorials are not misleading. -- We explain why consumers might be misled by advertorials — even when labeled — when advertising material has elements of editorial content. -- We surveyed nearly 600 consumers online with an advertorial embedded on a blog site . -- 27% of consumers thought the advertorial was written by a reporter or editor. -- 60% of consumers thought the spokesperson was a medical expert with a background image of blue products versus 23% with a white background. -- We present regulatory options for the FTC, including a ban on advertorials, enhanced disclosure requirements, and putting the burden on publishers to show that advertorials are not misleading.

Download the article from SSRN at the link.

January 13, 2016 | Permalink

Susser on Information Privacy and Social Self-Authorship

Daniel Susser, New York University Information Law Institute and San Jose State University Philosophy Department, is publishing Information Privacy and Social Self-Authorship in Techne: Research in Philosophy and Technology. Here is the abstract.

The dominant approach in privacy theory defines information privacy as some form of control over personal information. In this essay, I argue that the control approach is mistaken. I claim that information privacy involves the drawing of epistemic boundaries — boundaries between what others should and shouldn’t know about us. While controlling what information others have about us is one strategy we use to draw such boundaries, it is not the only one. We conceal information about ourselves and we reveal it. And since the meaning of information is not self-evident, we also work to shape how others contextualize and interpret the information about us that they have. Information privacy is thus about more than controlling information; it involves the constant work of producing and managing public identities, what I call “social self-authorship.” In the second part of the essay, I argue that thinking about information privacy in terms of social self-authorship helps us see ways that information technology threatens privacy, which the control approach misses. Namely, information technology makes social self-authorship invisible and unnecessary, by making it difficult for us to know when others are forming impressions about us, and by providing them with tools for making assumptions about who we are which obviate the need for our involvement in the process.

Download the article from SSRN at the link.

January 13, 2016 | Permalink

Canada's Corus Entertainment To Acquire Shaw Media

From the Hollywood Reporter and other sources: Canadian-based Corus Entertainment is acquiring Shaw Media,  part of Shaw Communications, for more than $2 and a half billion.  The total amount is part cash, part stock. The resulting conglomerate will dominate Canadian media as well as become a global player. The Canadian Radio-Telecommunications Commmission (CRTC), meanwhile, has okayed major changes on the nation's cable scene. Unbundling of cable (referred to as "pick and pay") begins in two months. The CRTC must give its approval to Corus' purchase of Shaw.

More on the Corus-Shaw deal here from the Globe and Mail.

January 13, 2016 | Permalink

Monday, January 11, 2016

Adler on Compelled Commercial Speech and the Consumer's "Right to Know"

Jonathan H. Adler, Case Western Reserve University School of Law and PERC (Property and Environment Research Center), is publishing Compelled Commercial Speech and the Consumer 'Right to Know' in the Arizona Law Review (2016). Here is the abstract.

Compelled commercial speech, including mandatory labeling and the disclosure of factually true information, should not be seen as a separate category of speech under the First Amendment. Rather, compelled commercial speech should be subject to the same level of protection as commercial speech generally. This means commercial speech compulsions, such as mandatory disclosures and labeling requirements, must be supported by a substantial government interest. The assertion of a consumer “right to know” does not constitute such an interest and cannot, by itself, justify compelled commercial speech. Allowing such a justification for compelled commercial speech would eviscerate any meaningful First Amendment protection against compelled commercial speech and, threaten core First Amendment values. Such protection against speech compulsions will not inhibit government efforts to protect consumers nor prevent consumers from obtaining desired information about products and services. A dynamic market discovery process, with only limited and targeted government interventions, is a more effective way to serve the consumer interest in more complete information about goods and services. Most existing compelled disclosure requirements are consistent with this approach to compelled commercial speech, but some new and proposed disclosure requirements, including those for genetically modified organisms, are likely unconstitutional.

Download the article from SSRN at the link.

January 11, 2016 | Permalink

Lazariev on Freedom of Expression in Malta

Denys Lazariev, Charles University in Prague, Law Faculty, has published Current Issues of Freedom of Expression in Malta as Charles University in Prague Faculty of Law Research Paper No. 2015/III/3. Here is the abstract.

Peculiarities of legal regulation of enjoyment of right to freedom of expression in Malta are analyzed. To achieve the objective, the basic legal sources of Malta, pieces of scientific research, international rankings and analysis made by international organizations were reviewed. Author deals with problematic issues of blasphemy as a criminal offence in the criminal law of Malta, and describes current status of freedom of expression in Malta.

Download the article from SSRN at the link.

January 11, 2016 | Permalink

Friday, January 8, 2016

Saikia on Art and the Indian Copyright Act

Nandita Saikia has published Art and Indian Copyright Law: A Statutory Reading . Here is the abstract.

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

Download the article from SSRN at the link.

January 8, 2016 | Permalink

Wednesday, January 6, 2016

Keck on the Problems of Banning Hate Speech in Democratic Societies

Thomas M. Keck, Syracuse University, Maxwell School of Citizenship and Public Affairs, is publishing Hate Speech and Double Standards in volume 1 of Constitutional Studies (Fall 2015). Here is the abstract.

Many European states ban the public expression of hateful speech directed at racial and religious minorities, and an increasing number do so for anti-gay speech as well. These laws have been subjected to a wide range of legal, philosophical, and empirical investigation, but this paper explores one potential cost that has not received much attention in the literature. Statutory bans on hate speech leave democratic societies with a Hobson’s choice. If those societies ban incitements of hatred against some vulnerable groups, they will inevitably face parallel demands for protection of other such groups. If they accede to those demands, they will impose an ever-tightening vice on incontrovertible free expression values; if they do not, they will send clear signals of unequal citizenship to those groups excluded from the laws’ protection. This paper elaborates this dilemma via exploration of a range of contemporary European legal responses to homophobic and Islamophobic speech.

Download the article from SSRN at the link.

January 6, 2016 | Permalink