Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, May 1, 2017

Roels on The Battle Against Hate Speech and Freedom of Expression Online @CharlesUniPRG

Jo Roels, Charles University in Prague Faculty of Law, has published The Battle against Hate Speech and Freedom of Expression Online as Charles University in Prague Faculty of Law Research Paper No. 2017/I/4. Here is the abstract.

The issue of hate speech has gained another dimension since the creation of the newest mass media: spreading of hatred online. There will be created a clear view on the problem of defining hate speech and the limitation of freedom of speech by the European Court of Human Rights combined with the reasoning of more focus on the online aspect, its characteristics and causes of generating more hate, harm and similar behaviour. This will lead to a human rights approach, including legal comparison, social angles and a focus on society as a whole. This paper will assess the need for a new impulse for battling hate speech, due to the lack of definition, framework and eye for new actors and the characteristics of the internet which are of importance for the actor and victim.

Download the article from SSRN at the link.

May 1, 2017 | Permalink

Thursday, April 27, 2017

Klinkner on Whether We Have a First Amendment Right To Social Media @WyomingStateBar

Blake Anthony Klinkner, Independent, has published Do You Have a First Amendment Right to Social Media? in volume 40 of The Wyoming Lawyer (April 2017). Here is the abstract.

This article analyzes recent court decisions, and a pending case before the United States Supreme Court, concerning the degree to which individuals have a First Amendment right under the United States Constitution to use social media. More specifically, this article analyzes the constitutionality of state laws which criminalize social media usage amount convicted felons.

Download the article from SSRN at the link.

April 27, 2017 | Permalink

Geiger, Bulayenko, and Frosio on The Introduction of a Neighboring Right for the Press Publisher at the EU Level: Unneeded (and Unwanted) Reform @GCFrosio @

Christophe Geiger, Oleksandr Bulayenko, and Giancarlo F. Frosio, all of the University of Strasbourg, Centre for International Intellectual Property Studies, have published The Introduction of a Neighbouring Right for Press Publisher at EU Level: The Unneeded (and Unwanted) Reform at 39 European Intellectual Property Law review 202 (2017). Here is the abstract.

This article discusses the proposed introduction in EU law of neighbouring rights for press publishers for the digital uses of their publications. This proposal is included in the European Commission’s Draft Directive on copyright in the Digital Single Market of 14 September 2016, which forms an important part of the ongoing reform of copyright at EU level. This article highlights the challenges for the Digital Single Market associated with the establishment of an additional layer of 28 national rights and their related exceptions and limitations. By reference to the “pie theory”, it also shows how this proposal risks redistributing resources from creators to publishers. Further, this article underlines the missing causal link between the proposed reform and market efficiency justifications. In contrast, existing empirical evidence shows negative externalities for smaller publishers and users at large. This evidence — together with the enclosure of the public domain that comes from the creation of new neighbouring rights and their retroactive application — might serve as a warning of the potential negative repercussions of this proposal on plurality of sources, users’ access to information — and more generally on democratization. In conclusion, this article recommends refraining from the introduction of neighbouring rights for press publisher online because they would (i) relent — rather than promote — the creation of a Digital Single Market, (ii) be detrimental for the interests of creators, smaller market players and users, while (iii) not solving any systemic issues of the EU copyright system. This article is based on the Opinion of the Centre for International Intellectual Property Studies (CEIPI) at the University of Strasbourg on the European Commission’s copyright reform proposal, with a focus on the introduction of neighbouring rights for press publishers in EU law. It was sent to the European Commission on 2 December 2016.

The full text is not available for download.

April 27, 2017 | Permalink

Wednesday, April 26, 2017

Kirley on Whether Digital Speech Can Loosen the Gordian Knot of Reputation Law @kirleez

Elizabeth Kirley, Deakin University Faculty of Business and Law, has published Can Digital Speech Loosen the Gordian Knot of Reputation Law? at 32 Santa Clara High Tech. L.J. 171 (2016). Here is the abstract.

This paper likens the current state of reputation law to a Gordian knot, entangled in complexities and calling for novel thinking to make it relevant to our public and private lives. Its central thesis is that digital speech is ontologically different from offline speech and so calls for a more informed response to the harms it can inflict in order to determine whether legal or extra-legal mechanisms are most restorative. In spite of a wealth of international norms that address the value of personal reputation, they have had minimal influences on regional and domestic laws of the European Union and the United States, reflecting the deeply rooted cultural differences on each side of the Atlantic that shape laws of privacy and free speech. In conclusion, implications for future methods of addressing online reputational harm outside of traditional legal systems are discussed.

Download the article from SSRN at the link.

April 26, 2017 | Permalink

VanLandingham on Jailing the Twitter Bird: Social Media, Material Support To Terrorim, and Muzzling the Modern Press @rachelelv12

Rachel Elizabeth VanLandingham, Southwestern Law School, is publishing Jailing the Twitter Bird: Social Media, Material Support to Terrorism, and Muzzling the Modern Press in the Cardozo Law Review. Here is the abstract.

Social media companies such as Facebook and Twitter are vulnerable to federal criminal prosecution under 18 U.S.C. § 2339B, the material support to terrorism statute, for providing a means for terrorists and their sympathizers to glorify and pursue their violence on social media. This Article exposes that vulnerability as well as the material support statute’s conflicts with the First and Fifth Amendments in this context, such as the statute’s chilling effect. In particular, the Article explores how social media providers have responded to threats from the U.S. government by suspending hundreds of thousands of user accounts, effectively censoring constitutionally protected speech. Crucial to this argument is this Article’s broader foundational assertion that social media providers should be seen as today’s fourth estate, and that what this Article identifies as the First Amendment’s “press narrative” should help shield them from this counterterrorism statute. This Article contextualizes this issue of social media providers and user speech within the classic struggle of state security versus freedom of press and speech in the age of modern transnational terrorism. The material support statute is currently the federal government’s foremost counterterrorism criminal tool, and its constitutional defects raise concerns about censorship during times of war and national insecurity. Addressing these concerns, this Article wrestles with the growing role of social media providers as news providers, the increasing alarm at terrorists’ and their supporters’ use of social media, and the tensions resulting from social media’s unique attributes such as general anonymity of users. It urges greater attention to questions critical for our liberal democracy: how and when to hold social media companies accountable for the speech they allow on their platforms.
Download the article from SSRN at the link.

April 26, 2017 | Permalink

Whelan on a Dispositive Analysis of Google and Copyright

Glen Whelan, Copenhagen Business School, is publishing Born Political: A Dispositive Analysis of Google and Copyright in Governance of Digital Technology, Big Data and the Internet, a special issues of Business & Society. Here is the abstract.

Google is a complex and complicated political beast with a significant, and often confusing, interest, in copyright matters. On the one hand, for example, Google is widely accused of profiting from piracy. On the other, Google routinely complies with what is rapidly approaching a billion copyright takedown requests annually. In the present article, Foucault, neo-Gramscians, and Deleuze and Guattari, are utilized to help construct a 3² dispositive analysis framework that overlaps three dispositive modalities (law, ethical, utilitarian) and perspectives (apparatus, articulation, assemblage). In applying the framework to the Google-copyright relationship, the article shows how Google was ‘born political’: in that it was, and still is, disposed, by an apparatus comprised of copyright laws, Silicon Valley culture, and broad advances in digitization. Moreover, the article shows how Google continuously acts where ‘politics is born’: as it significantly shapes copyright considerations by disposing of (non-)human and organizational phenomena through articulations and assemblages.

Download the article from SSRN at the link.

April 26, 2017 | Permalink

Graber on Bottom-Up Constitutionalism: The Case of Net Neutrality

Christoph B. Graber, University of Zurich, Faculty of Law, has published Bottom-Up Constitutionalism: The Case of Net Neutrality at 7 Transnational Legal Theory 524 (2017). Here is the abstract.

Net neutrality is no longer only a battle cry of a few Internet romancers but has evolved into a key value for contemporary society that is being institutionalised as a constitutional right. With the help of sociological systems theory, this text argues that the social and legal institutionalisation of constitutional rights need to be distinguished. Commonly, constitutional rights emerge from society before they are reformulated in the legal realm. Using the example of the United States, the paper shows empirically that net neutrality is about to emerge as a new fundamental value and right. Its constitutionalisation is happening bottom-up, driven by social movements, Internet activists and advocacy groups, and further, in an interweavement of civil society dynamics with the legal system. The question is whether constitutional structures have already become identifiable. The last section discusses the relationship between social and formal constitutional structures from a legitimacy and democracy perspective.

Download the article from SSRN at the link.

April 26, 2017 | Permalink

Tuesday, April 25, 2017

Tenth Circuit Upholds Lower Court Ruling of Summary Judgment For University, Against Student, In First Amendment Claim Over Paper

The Tenth Circuit rendered an opinion on the issue of balancing a student's freedom of speech argument against the right of educators to require academic standards. In Pompeo v. Board of Regents of the University of New Mexico, the court examined the claim of a graduate student that the university, through its professors and administrators, improperly burdened her freedom of expression by restricting her speech (in a paper submitted for a course) based on her viewpoint and by failing to show that the restriction was based on legitimate pedagogical goals. In effect, Ms. Pompeo argued that the university retaliated against her for a viewpoint that the instructor (and therefore the school) disfavored. The lower court had granted summary judgment based on qualified immunity.  Said the court, " [W]e agree with the district court that it is unclear if courts should ask whether a defendant’s actions were subjectively retaliatory or whether the retaliatory actions were objectively unrelated to a pedagogical goal. Nevertheless, under either standard, we conclude that the actions taken by Hinkley and Dever were sufficiently related to pedagogical goals that the claimed unconstitutional nature of their particular conduct was not clearly established." It upheld the lower court's grant of summary judgment.

More here. The case is Pompeo v. Board of Regents of University of New Mexico et al., 10th Cir., No. 15-2179, decided March 28, 2017.  Judge Neil Gorsuch originally considered the appeal but took no part in the writing of the opinion.

 

More about the case here from Reuters.

April 25, 2017 | Permalink

Monday, April 24, 2017

Turkey Releases Italian Journalist After 15 Days of Detention

Via Newsweek, the news that Turkey has released Italian journalist Gabriele Del Grande, who was arrested on April 9, and began a hunger strike on April 18.  Turkish authorities apparently arrested him because he was not allowed to be in the part of the country in which they found him working, and because he didn't have a work permit.  He arrived home on April 24 (SFGate).

April 24, 2017 | Permalink

The Effects of a Wikileaks Prosecution: A Guardian Op-Ed

In an op-ed, the Guardian discusses whether a prosecution of Wikileaks for, well, leaking, is a good idea. Its conclusion is that on the whole, U.S. journalists and their readers would suffer immeasurably if the U.S. government prosecutes Wikileaks.

For one thing, the media depends on sources, frequently anonymous sources, to provide information in situations in which the sources might be at risk if they revealed their names. For another, the chilling effect would be enormous, not just on the media but on other outlets through which individuals express themselves.

More reaction to a possible Wikileaks prosecution here, from The Wrap, here from ThinkProgress.

April 24, 2017 | Permalink

Thursday, April 20, 2017

Seaman and Wilson on #FreeSpeech @Julie_seaman @David_S_Wilson

Julie Seaman, Emory University School of Law, and David Sloan Wilson, Binghamton University, are publishing #FreeSpeech in volume 48 of the Arizona State Law Journal (2017). Here is the abstract.

It has become commonplace to note that courts have struggled with the challenge of applying analog legal concepts to digital spaces, and nowhere is this truer than in the context of the First Amendment. Here, we focus on a very specific aspect of the Internet and social media revolution – the impact on human behavior of this distinct medium of communication – to consider whether the online context of a communication can be expected to affect the behavior either of the speaker or the audience in ways that might be relevant to First Amendment theory and doctrine. With the emergence of the field of cyberpsychology over the past decade, the complex universe of the online social brain has begun to reveal itself. While much of this space is thus far only roughly mapped and much else is yet to be discovered, there are a number of preliminary findings that have implications for thinking about freedom of speech on the Internet. The nature and effects of disinhibition online, the effect of online social communication on memory and belief about facts and events in the physical world, and the drivers of antisocial behaviors such as flaming, shaming, and trolling – to name just a few – are all fertile ground for analysis and further research as they relate to First Amendment theory, doctrine, and values. This initial foray into the treacherous terrain at the crossroads of the First Amendment, social media, and human behavior also draws on the evolutionary science of group dynamics and cooperation, which has much to say about how individuals behave within groups, how groups behave with respect to other groups, and the features that can make some groups successful, constructive, egalitarian, and prosocial while others are destructive, hierarchical, violent, and antisocial. It explores the implications of these ideas as they relate to groups that operate in cyberspace.

Download the article from SSRN at the link.

April 20, 2017 | Permalink

Wednesday, April 19, 2017

Kaminski on Privacy and the Right to Record @MargotKaminski

Margot E. Kaminski, Ohio State University College of Law, Yale University Information Society Project, Yale University Law School, is publishing Privacy and the Right to Record in volume 97 of the Boston University Law Review. Here is the abstract.

Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record. The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s behavior to disrupt the behavior of others. That interest, importantly, will not always justify suppressing recording, but it can be distinguished from an impermissible government interest in suppressing speech. Moreover, the government’s interest in managing the qualities of a particular environment can itself be speech-protective—and has been recognized as such. As technological development brings more recording devices into the physical world, courts will need to determine how to balance speech interests and privacy. First Amendment doctrine, often blunt in nature, is in fact, and perhaps surprisingly, equipped to address the nuances of this challenge. Regulating recording governs a moment of interaction in physical space, not a downstream editorial decision that may cause dignitary harms. Regulation, thus, does not break with the U.S. free speech tradition of protecting the publication and distribution of information.

Download the article from SSRN at the link.

April 19, 2017 | Permalink

Saturday, April 15, 2017

Lee on Student Protests and Academic Freedom in an Age of #BlackLivesMatter

Philip Lee, University of the District of Columbia School of Law, is publishing Student Protests and Academic Freedom in an Age of #Blacklivesmatter in volume 78 of the Ohio State Law Journal. Here is the abstract.

Student activism for racial equity and inclusion is on a historic rise on college and university campuses across the country. Students are reminding us that Black lives matter. They are bringing attention to the ways in which the normal operation of the legal system creates racial and other inequalities. They are critiquing the ways in which their experiences and perspectives are pushed to the margins in classrooms, on campuses, and in society. In urging for university policies that allow for such activism to be moments of teaching and learning for all involved, I argue in this Article that student academic freedom to protest — conceived as a right to learn — should be seriously considered by institutional decision-makers when they are creating rules and policies governing on-campus student dissent. Otherwise, student voices will be deemed irrelevant and protests will be unfairly reduced to unjustifiable outbursts by young people craving attention — something to be either tolerated as mere annoyances or extinguished as threats to order. But if administrators and professors take the time to listen to what students are saying and explore the issues underlying their grievances, much can be gained. I argue that colleges and universities move away from the question, “how do we stop our student activists,” toward the question, “what are students learning from their activism and what, in turn, can the institutions learn from it?” As I have posited in this Article, one way to start the process of learning from what student activists have to say is to include students’ rights in a balancing test when speech is disputed — e.g., in student protests involving invited speaker interruption, unauthorized building and office occupation, and even various forms of disruption in cyberspace. Such a test should be articulated in university policies and made binding through contract law. While student protestors may not always win in the balancing, at least their academic freedom right to learn, and I would argue teach others, will be part of the conversation. My hope is that recognition that student protest has positive value to the university community and is an essential part of academic freedom will begin to shift attention to the substantive issues underlying student grievances. In this way, student activism will truly be an opportunity for all to learn. My article proceeds in four parts. Part I analyzes the historical context of racial exclusion in American higher education and connects it to modern efforts to promote racial justice to illustrate a continuum of students pressing for this type of change. Part II outlines the inadequacies of student academic freedom as articulated by courts defining this freedom in relation to the First Amendment. Part III proposes a new mechanism based on contract law that would incorporate major higher education policy statements on student academic freedom that conceptualize this freedom through a learning principle as legally binding obligations between universities and their students. Finally, Part IV explores how my proposed student academic freedom would balance the tensions between free speech and student demands for racial justice by employing a test that takes both “the marketplace of ideas” and student freedom to learn into account.

Download the article from SSRN at the link.

April 15, 2017 | Permalink

Friday, April 14, 2017

Rosati on GS Media and Its Implications For the Construction of the Right of Communication To the Public Within EU Copyright Architecture @eLAWnora

Eleonora Rosati, University of Southampton School of Law, is publishing GS Media and Its Implications for the Construction of the Right of Communication to the Public within EU Copyright Architecture in the Common Market Law Review. Here is the abstract.

In its 2016 decision in GS Media, C-160/15 the Court of Justice of the European Union (CJEU) sought to clarify under what conditions the provision of a link to a work protected by copyright made available on a third-party website (where it is freely accessible) without a licence from the relevant rightholder falls within the scope of the right of communication to the public within Article 3(1) of the InfoSoc Directive. In its decision the CJEU held that whether linking to unlicensed content falls within or outside the scope of Article 3(1) of the InfoSoc Directive depends – crucially – on whether the link provider has a profit-making intention or knowledge of the unlicensed character of the work linked to. This article assesses the implications of the GS Media decision in respect of linking, and – more generally – the construction of the right of communication to the public. The main conclusion is that GS Media imposes a re-consideration of what amounts to an act of communication to the public. Yet, the forthcoming CJEU decisions in pending references for a preliminary ruling (Filmspeler, C-527/15, and Ziggo, C-601/15) might lead to a relaxation of the concept of 'indispensable intervention', thus broadening the notion of who makes an act of communication to the public. Ultimately the discussion undertaken in this contribution suggests that the concept of ‘communication to the public’ has been undergoing an evolution. The next frontier for Article 3(1) of the InfoSoc Directive appears to be not just a determination of what amounts to an act of communication to the public, but also who makes an act of communication to the public. The latter in particular is the next question for the CJEU to tackle, and also poses significant – and not entirely worked out – challenges to EU policy- and law-making.

Download the article from SSRN at the link.

April 14, 2017 | Permalink

A New Book on Speech and International Crime, From Gregory S. Gordon

New from Oxford University Press: Gregory S. Gordon, Atrocity Speech Law: Foudation, Fragmentation, Fruition (May, 2017). Here's a description of the book's content, provided by the publisher.

 

The law governing the relationship between speech and core international crimes — a key
component in atrocity prevention — is broken. Incitement to genocide has not been adequately
defined. The law on hate speech as persecution is split between the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). Instigation is confused with incitement and ordering's scope is too circumscribed. At the same time, each of these modalities does not function properly in relation to the others, yielding a misshapen body of law riddled with gaps. Existing scholarship has suggested discrete fixes to individual parts, but no work has stepped back and considered holistic solutions.

This book does. To understand how the law became so fragmented, it returns to its roots to explain how it was formulated. From there, it proposes a set of nostrums to deal with the individual deficiencies. Its analysis then culminates in a more comprehensive proposal: a [publisher's description ends here].

April 14, 2017 | Permalink

Thursday, April 13, 2017

Ravid on Tweeting #Justice: Audio-Visual Coverage of Court Proceedings in a World of Shifting Technology

Itay Ravid, Stanford University School of Law, has published Tweeting #Justice: Audio-Visual Coverage of Court Proceedings in a World of Shifting Technology at 35 Cardozo Arts and Entertainment Law Journal 41 (2017). Here is the abstract.

The debate over whether to allow cameras into courtrooms refuses to fade away. In 2015 alone, U.S. federal courts completed a five-year experiment with cameras in courts, New Zealand published new guidelines for audio-visual coverage, and Scotland completely revised its former broadcast policy. These jurisdictions, and others around the globe, constantly struggle to design model practices that successfully balance freedom of the press, transparency, and public access to information, with rights to a fair trial and privacy. The constant need to rethink coverage policies can be attributed in large part to the advancement of technology, providing the media innovative tools to report from within courtrooms even when formal legal norms bar direct reports. These advancements often result in an unsettling disparity between formal norms and the reality of court coverage. Drawing on the Israeli example, this Article seeks to address this timely issue, illustrating how social media and technological advancements can push regulators to re-evaluate legal regimes that seem to lag behind the law in action. The Article provides a systematic analysis of both doctrinal arguments and empirical data on the policies adopted by different common law jurisdictions, aiming to devise a policy framework for audio-visual coverage of courts in the age of hyper-technology. By synthesizing lessons from these jurisdictions, the Article first traces the evolution of the doctrine on audio-visual coverage across various jurisdictions, and its constitutional framing. Moreover, the Article exposes the politicization of constitutional law: how courts adopt flexible frameworks with regard to policies on constitutional issues that affect them. Second, the Article suggests that existing empirical data are generally supportive of coverage, showing almost no adverse effects resulting from the presence of cameras in courtrooms. Third, the Article provides practical tools for reaching balanced coverage policies, offering the first analytical framework for the design of coverage policies. The Article utilizes the Israeli case study—a country with currently no audio-visual coverage policy—in order to implement the suggested framework and offers a comprehensive coverage policy within Israeli courts.

Download the article from SSRN at the link.

April 13, 2017 | Permalink

Lantagne on Fame on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication @StaceyLantagne

Stacey Lantagne, University of Mississippi School of Law, has published Famous on the Internet: The Spectrum of Internet Memes and the Legal Challenge of Evolving Methods of Communication. Here is the abstract.

On a daily basis, millions of Internet users re-blog, re-tweet, and re-post the content of others on social media. It is conduct that has led to a flourishing social Internet culture, but it is also conduct that implicates many clashing interests. For some, an Internet meme is a work of their own creativity whose co-option by the Internet at large is an act of infringement. For others, an Internet meme is a violation of their privacy resulting in severe emotional distress. For still others, an Internet meme is a vital communicative tool expressing particular ideas that cannot be articulated in any other way. This Article argues that the legal analyses applied to memes should strive to seek a balance between all of these interests, promoting the continuation of meme culture while also protecting those harmed by meme culture’s excesses. This Article uses the examples of a number of different memes to demonstrate that meme usage encompasses a spectrum of activity ranging from static to mutating in nature. These different uses have correspondingly different impacts on the legal rights of all three meme interest groups, none of which are adequately captured by traditional applications of existing doctrines of intellectual property or privacy laws. This Article posits that explicit acknowledgment of the wide spectrum of meme behavior should be used to help guide and appropriately adjust the application of legal doctrine to the meme in question, with attention paid to the underlying policy interests of a particular meme use. This can lead to more effective legal decisions regarding these memes that balance more precisely the interests of all those affected — both negatively and positively — by Internet meme culture.

Download the article from SSRN at the link.

April 13, 2017 | Permalink

Haupt on Professional Speech and the Content-Neutrality Trap @ColumbiaLaw

Claudia E. Haupt, Columbia University Law School and Yale University Information Society Project, is publishing Professional Speech and the Content-Neutrality Trap in volume 127 of the Yale Law Forum (2017). Here is the abstract.

The Eleventh Circuit’s en banc decision in Wollschlaeger v. Florida is remarkable for embracing content neutrality as a tenet of First Amendment doctrine in the realm of professional speech. A new form of aggressive content neutrality is on the rise in First Amendment jurisprudence. Reed v. Town of Gilbert, a seemingly innocuous case about a municipal sign ordinance, ushered in what may turn out to be a dramatic shift in the way courts employ content neutrality as a core principle of the First Amendment. But content neutrality should not be thought of as axiomatic across the First Amendment. This Essay illustrates the dangers of falling into the content-neutrality trap in the context of professional speech. Professional speech communicates the profession’s insights to the client for the purpose of providing professional advice. The value of professional advice critically depends on its content. The First Amendment therefore may not require regulation to be blind to the content of professional speech.

Download the article from SSRN at the link.

April 13, 2017 | Permalink

Green on the Audacity of Protecting Racist Speech Under the National Labor Relations Act @TAMULawSchool

Michael Z. Green, Texas A&M University School of Law, is publishing The Audacity of Protecting Racist Speech under the National Labor Relations Act in the 2017 volume of the University of Chicago Legal Forum. Here is the abstract.

This Article, written for a symposium hosted by the University of Chicago Legal Forum on the Disruptive Workplace, analyzes the most recent failures of the National Labor Relations Board (NLRB) to determine a thoughtful and balanced approach in addressing racist speech. Imagine two employees in the private sector workplace are discussing the possibility of selecting a union to represent their interests regarding wages and working conditions. During this conversation, a black employee notes the importance of using their collective voices to improve working conditions and compares the activity of selecting a union with the Black Lives Matter protests aimed at addressing the killings of black men in a number of high-profile incidents within the last couple of years. The other employee, a white male, responds by telling the black employee that “nothing will be gained from mentioning Black Lives Matter in this union organizing campaign. Black Lives Matter just represents a crusade to address what happened to a bunch of N-word criminals who got what they deserved. All lives matter.” The white male employee also stated “they need to stop being distracted by issues of race and focus on the only division that matters in the workplace, class.” One might be surprised to learn that the white male’s statement could arguably be protected under the National Labor Relations Act (NLRA). The NLRB, the agency charged with enforcing the NLRA, has recently held that employees engaged in concerted activity on a picket line may utter racial epithets at black workers with impunity. Also, the NLRB has a long history of allowing employees engaged in concerted activity to respond to their supervisors with vile and disgusting language that arguably includes the use of racial epithets. Further, the NLRB places the burden on the employer to show that utterances of racial epithets in the workplace would clearly result in the same disciplinary action taken absent any concerted activity associated with the communications. The question of whether offensive and racist statements should be protected under the NLRA, when uttered by employees arguably engaged in concerted activity, raises a problem that has not yet been adequately addressed by the NLRB. This Article asserts that the NLRB’s decisions protecting employee use of racist speech while also engaged in concerted activity have failed to consider the important concerns that employers must address in preventing harassment in the workplace based on race under Title VII of the Civil Rights Act of 1964. Incidents of racism being highlighted nationally by the Black Lives Matter movement make this an important time for the NLRB, a federal agency concerned about workplace rights, to not send such a strong message that employees may utter racial epithets without any consequences. Further, these NLRB decisions send a broader, wrongful and even retaliatory message to black employees concerned about the use of racial epithets in the workplace, that nothing will happen if black employees protest this disruptive and offensive activity. This Article will review the important NLRB decisions regarding what is referred to as the audacity of protecting racist workplace speech under the NLRA. The Article will suggest an analytical change to how the NLRB should balance protection of concerted activity under the NLRA with the disruptive workplace activity of uttering racial epithets. The proposed change suggests an analytical framework that does not deter black employee protest of this disruptive behavior and accommodates Title VII’s broad retaliation analysis.

Download the article from SSRN at the link.

April 13, 2017 | Permalink

Graber on Bottom-Up Constitutionalism: The Case of Net Neutrality

Christoph B. Graber, University of Zurich, Faculty of Law, has published Bottom-Up Constitutionalism: The Case of Net Neutrality at 7 Transnational Legal Theory 524 (2017). Here is the abstract.

Net neutrality is no longer only a battle cry of a few Internet romancers but has evolved into a key value for contemporary society that is being institutionalised as a constitutional right. With the help of sociological systems theory, this text argues that the social and legal institutionalisation of constitutional rights need to be distinguished. Commonly, constitutional rights emerge from society before they are reformulated in the legal realm. Using the example of the United States, the paper shows empirically that net neutrality is about to emerge as a new fundamental value and right. Its constitutionalisation is happening bottom-up, driven by social movements, Internet activists and advocacy groups, and further, in an interweavement of civil society dynamics with the legal system. The question is whether constitutional structures have already become identifiable. The last section discusses the relationship between social and formal constitutional structures from a legitimacy and democracy perspective.

Download the article from SSRN at the link.

April 13, 2017 | Permalink