Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, September 22, 2021

Bhagwat on Whether Platforms Have Editorial Rights @JournalSpeech

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, has published Do Platforms Have Editorial Rights? at 1 Journal of Free Speech Law 97 (2021). Here is the abstract.

Social media today plays a central, albeit vexing and divisive role in our social and political culture. In response to the alleged failures of social media, a vast array of regulatory proposals have been advanced, and in some cases legislatively enacted, that would restrict the ways in which social media platform owners may moderate content on their platforms. These proposals include, among other things, imposing common carrier status on platforms (an approach endorsed by Justice Thomas in a recent separate opinion), requiring viewpoint-neutral content moderation policies, and restricting or conditioning platforms’ Section 230 immunities in various ways. What all of these proposals have in common is that they seek to impose legal restrictions on how social media platforms control the content that they host, refuse to host, display, and prioritize. These proposals are in deep tension with the idea that platforms themselves have First Amendment rights to control what content is available or visible on their platforms—what I call editorial rights. This article considers whether, and to what extent, social media platforms enjoy First Amendment editorial rights, and the implications of those rights for assorted regulatory initiatives. I begin by defining First Amendment editorial rights, and distinguishing between different kinds of editorial rights. I then examine how, and to what extent, the courts have extended editorial rights to new communications technologies. I next turn to the specific question of internet platform editorial rights, concluding that social media platforms should indeed enjoy substantial editorial rights, though probably fewer than prototypical holders of editorial rights such as print newspapers. I conclude by considering whether current regulatory proposals are consistent with these editorial rights.

Download the article from SSRN at the link.

September 22, 2021 | Permalink

Friday, September 17, 2021

Murray on Newspaper Expungement

Brian Murray, Seton Hall Law School, has published Newspaper Expungement in volume 116 of Northwestern University Law Review Online, 2021. Here is the abstract.

Expungement law has made great strides over the past two decades, with state-level reforms broadening the types of criminal records eligible for expungement. Further, expungement has been extended beyond arrestees to those who have been convicted, thereby promising to alleviate some of the burdens of reentry. Nevertheless, expungement remedies only touch officially held information or public data possessed by different branches of government. This means that private actors, if they possess the information, are beyond the reach of expungement law. Such actors, whether individuals, background check companies, newspapers, or other firms, enjoy the ability to continue to hold and use such information. This results in a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information. Recently, one private actor, newspapers, has begun to set up processes that resemble formal expungement. Newspaper editors have responded to the limits of formal expungement by constructing their own procedures for evaluating whether to erase, seal, or alter information that is damaging to the reputation of those who have encountered the criminal justice system. This development has occurred on the heels of the right to be forgotten movement in Europe, which has gained little traction in the United States. This Essay contextualizes the phenomenon of newspaper expungement, situating it within a larger legal backdrop, before describing the stated activities and aspirations of some of the newspapers themselves. It concludes by charting how such practices relate to broader critiques and goals of criminal justice reform.

Download the article from SSRN at the link.

September 17, 2021 | Permalink

Thursday, September 9, 2021

Long on All I Really Need To Know About Defamation Law In the 21st Century I Learned From Watching Hulk Hogan @UTKLaw

Alex B. Long, University of Tennessee College of Law, has published All I Really Need to Know About Defamation Law in the 21st Century I Learned From Watching Hulk Hogan, as University of Tennessee Legal Studies Research Paper No. 418.

If there is a body of law that is ripe for reappraisal in light of changing times, it is defamation law. Changes in how news is reported and entertainment is produced have blurred some of the traditional legal rules regarding the distinction between actionable fact and non-actionable fiction. At the same time, advances in technology and changes in society have caused some – most notably Supreme Court Justices Thomas and Gorsuch – to question whether the traditional New York Times Co. v. Sullivan standard used in defamation cases should remain good law. In 2000, professional wrestling legend Hulk Hogan sued World Championship Wrestling after he was allegedly defamed in the ring by another performer during a broadcast in one of the most controversial incidents in the history of professional wrestling. The case raised some of the same issues that courts face today as they attempt to navigate a new landscape in which it is not always easy to distinguish real news from fake news and fact from opinion, parody, fiction, and hyperbole. This Essay explores the Hulk Hogan defamation litigation and how the decision illustrates some of the shortcomings of the courts’ approach to defamation cases involving publications the blur reality and fiction.

Download the article from SSRN at the link.

September 9, 2021 | Permalink

Tuesday, September 7, 2021

Conrad on Fake News, Personal Attacks, and Ideological Media Run Amok--It Is Time For Fairness Doctrine 2.0 @FordhamGSB

Mark A. Conrad, Fordham University, Gabelli School of Business, has published Fake News, Personal Attacks, and Ideological Media Run Amok – It is Time for Fairness Doctrine 2.0. Here is the abstract.

From 1949 to 1987, a regulation known as the “Fairness Doctrine” required radio and television stations to offer response time to those attacked by a broadcast editorial or commentary and required radio and television stations to offer differing views of issues of public concern. The Supreme Court upheld this rule against a First Amendment challenge, noting that the unique aspects of broadcasters justified this requirement. Ultimately, the rule was rescinded by the Federal Communications Commission on the ground that it was no longer needed because the growth of broadcasters rendered it outdated. The FCC determination also questioned its constitutionality. In more recent years, the expansion and influence of talk radio and cable news commentators coupled with the election of Donald Trump as president created a more toxic political environment with certain commentators employing distortions and even lies in their broadcasts and cablecasts. This paper advocates a return of the Fairness Doctrine, crafted to include cable television and streamed broadcasts deriving from cable as an effective way to allow opposing viewpoints for audiences that are effectively limited from access to those views because of the of ideological bent of the radio stations and cable services they watch. The article will demonstrate that a resurrection of the Fairness Doctrine is important for the future of the electorate and would be constitutionally valid.

Download the article from SSRN at the link.

September 7, 2021 | Permalink

Conrad on Fake News, Personal Attacks, and Ideological Media Run Amok--It Is Time For Fairness Doctrine 2.0 @FordhamGSB

Mark A. Conrad, Fordham University, Gabelli School of Business, has published Fake News, Personal Attacks, and Ideological Media Run Amok – It is Time for Fairness Doctrine 2.0. Here is the abstract.

From 1949 to 1987, a regulation known as the “Fairness Doctrine” required radio and television stations to offer response time to those attacked by a broadcast editorial or commentary and required radio and television stations to offer differing views of issues of public concern. The Supreme Court upheld this rule against a First Amendment challenge, noting that the unique aspects of broadcasters justified this requirement. Ultimately, the rule was rescinded by the Federal Communications Commission on the ground that it was no longer needed because the growth of broadcasters rendered it outdated. The FCC determination also questioned its constitutionality. In more recent years, the expansion and influence of talk radio and cable news commentators coupled with the election of Donald Trump as president created a more toxic political environment with certain commentators employing distortions and even lies in their broadcasts and cablecasts. This paper advocates a return of the Fairness Doctrine, crafted to include cable television and streamed broadcasts deriving from cable as an effective way to allow opposing viewpoints for audiences that are effectively limited from access to those views because of the of ideological bent of the radio stations and cable services they watch. The article will demonstrate that a resurrection of the Fairness Doctrine is important for the future of the electorate and would be constitutionally valid.

Download the article from SSRN at the link.

September 7, 2021 | Permalink

Guiora on Toleration of Free Speech: Imposing Limits on Elected Officials

Amos N. Guiora, University of Utah, S. J. Quinney College of Law, is publishing Toleration of Free Speech: Imposing Limits on Elected Officials in the Palgrave Handbook of Toleration (Mitja Sardoc, ed., 2021). Here is the abstract.

Tolerance is a nuanced issue, inevitably raising concerns regarding tolerant of what and whom. There is a sense of subjective judgment in the tolerance-intolerance debate; the terminology reflects particular norms, mores, customs, and traditions. What one might perceive as a healthy and tolerable challenging of existing acceptable “ways,” another would not tolerate because of the very challenge it poses to society. That split between tolerance-intolerance applies to both speech and conduct. It reflects everyday tensions, challenges, and conflict. In examining the tolerance-intolerance debate in the speech context there are a number of assumptions integral to a robust, liberal democracy: the freedom of speech is given a wide swath, whereby courts broadly protect the freedom of speech guaranteed in constitutions and legislation. While the speech may make certain sectors of the population uncomfortable, may be perceived as offensive, courts are tolerant of such speech provided it does not morph-transition into the realm of incitement. National leaders have significant power when they speak. The scope of this chapter is limited to analyzing the extent to which national leaders’ speech should be tolerated. Donald Trump and Bibi Netanyahu both provide salient examples regarding the extent to which speech should be tolerated. Both Netanyahu and Trump have used social media to great effect. The way that social media facilitates the spread of misinformation plays must be taken into account when analyzing the importance of contemporary leaders’ speech. In addition, the level to which qualified immunity and the freedom of speech should apply to elected officials comes under question. This chapter analyzes the extent to which qualified immunity should apply and the level of tolerance that the speech of leaders should be afforded.

Download the essay from SSRN at the link.

September 7, 2021 | Permalink

Friday, August 27, 2021

Blitz on Deepfakes and Other Non-Testimonial Falsehoods: When Is Belief Manipulation (Not) First Amendment Speech? @OCULAW

March Jonathan Blitz, Oklahoma City University, has published Deepfakes and Other Non-Testimonial Falsehoods: When is Belief Manipulation (Not) First Amendment Speech? 23 Yale J.L. & Tech. 160 (2020). Here is the abstract.

With a kind of machine learning known as “deep learning,” a computer program can quickly teach itself to recreate a person’s image or voice, manipulate it—like a puppeteer controlling a puppet—and blend it seamlessly into an environment the person never inhabited. This kind of fake video or audio, a “deepfake,” can be very difficult to distinguish from genuine camera footage. Does this kind of deepfake video or audio constitute “speech” protected by the First Amendment even when it is intended to deceive? Those who have begun to address this question have answered with a tentative “yes.” In the twenty-first century, video and audio recordings are a means of expression: We frequently share video and audio clips on social media both as acts of creative expression, and to convey information. Deepfakes are fake recordings - depicting events that haven’t occurred - but this doesn’t mean they lose First Amendment protection. The Supreme Court made clear - in the 2012 case, United States v. Alvarez, that the First Amendment presumptively protects verbal lies, so the visual lies in deepfake videos should receive First Amendment protection as well. Intentionally deceptive deepfakes might still be restricted, but only when they cause harm beyond the false belief they generate. This article, however, argues that we need a more nuanced view of deepfakes’ First Amendment status. We fail to fully understand how deepfake deception works if we define it as nothing more than the visual analogue of a verbal lie. Audiences understand that verbal lies come from speakers - and if they distrust the speaker, they will likely distrust the speaker’s claims. Video and audio recordings, by contrast, have often been viewed as consisting at least partly as evidence outside of a speaker’s authorship: Such recordings have often been treated as more reliable evidence of an event’s occurrence, on the understanding that (at least in previous decades, and to some extent even today) a video couldn’t easily be made to show an event unless it actually took place. For example, even someone who doubted the defendant’s verbal claim in United States v. Alvarez that he had been awarded Congressional Medal of Honor in 1987 might find it much harder to withhold belief in the reality of a video showing the defendant receiving a Medal of Honor from President Reagan in a 1987 ceremony. The video here would likely be understood by its audience not merely as an analogue of the defendant’s own claims or “testimony,” but rather as camera-generated evidence that was created, and stands outside of, a person’s words. A deepfake of such a Medal of Honor ceremony is thus arguably more akin to a record in a fake government Web database or register of Medal of Honor winners - a kind of deception that the Justices in Alvarez indicated in dicta would not receive First Amendment protection. Like such a fake government Web site, a deepfake would successfully deceive only because, unlike the speaker’s words, it is mistakenly viewed as a record outside of the speaker’s authorship, and deriving from some more source more insulated against the speaker’s manipulation. Courts could conceivably respond to the rise of deepfake technology by finding that - just as each person must serve as their own “watchman for truth” in assessing others’ words - they must, now that deepfakes are a reality, do so also when they (skeptically) assess the veracity of each video recording they see (or, for that matter, any other evidence that might be fabricated - from fake physical objects to false GPS readings). But just as courts in Fourth Amendment cases have refused to let advances in surveillance technology, or other digital technology, crowd out either the privacy interests protected by the Fourth Amendment or the security interests it has to leave room for, so they should - in First Amendment cases on deepfakes and other technology - refuse to allow the First Amendment right of authorship respected in Alvarez expand into a general First Amendment right to manipulate others’ environment (or their perceptions of it). This does not mean that courts can simply treat even intentionally deceptive deepfakes as wholly outside the coverage of the First Amendment. Because intentionally deceptive deepfakes can be very hard to distinguish from deepfakes that are exercises of creative fiction or other expression, restrictions on deepfakes should generally be subject to intermediate scrutiny under the First Amendment. Because even intentionally deceptive deepfakes might be targeted by government on the basis of the political beliefs they support rather than their deceptiveness, such restrictions should also be subject to viewpoint neutrality requirements. Ultimately, the type of law most likely to survive such First Amendment constraints will often likely be one that mandates disclosure of the deepfake’s nature rather than a prohibition on its creation or dissemination.

Download the article from SSRN at the link.

August 27, 2021 | Permalink

Henricksen on Disinformation and the First Amendment: Fraud on the Public

Wes Henricksen, Barry University School of Law, has published Disinformation and the First Amendment: Fraud on the Public. Here is the abstract.

If one deceives another in a manner that profits the deceiver and harms the victim, it is fraud, a crime and a tort. However, if one deceives a great number of people in a manner that profits the deceiver and harms the public, it is generally neither a crime nor a tort. It is often legal to mislead the public for profit. As a result, harmful disinformation is disseminated constantly by politicians, the media, and corporations. This disinformation causes a multitude of harms to human health, life, and property, to the environment, and to democratic institutions and systems. Because of the emergence and growth of the internet, email, and social media, disinformation spreads faster and is, in many measures, more problematic today than it has ever been. And it is getting worse. Disinformation cannot, in general, be stopped without infringing on fundamental First Amendment rights. If Congress or a state passed a law curtailing disinformation, or any broad category within it, such a content-based regulation would not survive a First Amendment challenge under strict scrutiny. Why? Because disinformation and other terms like it (e.g., fake news, lies, and misinformation) are broad and vague, and encompasses both protected and unprotected speech. This Article argues that some of the most harmful disinformation, which results in widespread damage, should be deemed unprotected speech because it is fraudulent speech and not merely false speech. Harmful disinformation that amounts to “fraud on the public” is distinct from (and worse than) other kinds of disinformation. The Article sets forth elements that must be met to qualify as fraud on the public. Conduct that qualifies as fraud on the public, rather than merely spreading disinformation, should be deemed either to fit within the fraud exception to the First Amendment, or to have its own carve-out from First Amendment protections. This argument is, in some ways, a radical one; the fraud exception to the First Amendment normally applies only to behavior satisfying the elements of civil or criminal deceit, or one of the other long-established categories of fraudulent speech, such as securities fraud or false advertising. However, because fraud on the public is carried out in the same manner as fraud on the individual, and because the harm it causes to individuals, society, and the environment is as bad or worse than fraud on the individual, fraud on the public, like fraud, runs counter to the very aims of the free speech provision of the First Amendment. As a result, fraud on the public should be deemed unprotected fraudulent speech. Failure to do this will result in the continued growth and spread of the most harmful disinformation, further damaging public health and the environment, poisoning political discourse, and generating further attacks on democracy.

The full text is not available from SSRN.

August 27, 2021 | Permalink

Tuesday, August 24, 2021

Newly Published: Having Your Say: Threats to Free Speech in the 21st Century (J. R. Shackleton, ed., IEA, 2021) @iealondon

J. R. Shackleton, Institute of Economic Affairs (IEA); Westminster Business School; University of Buckingham, is the editor of Having Your Say: Threats to Free Speech in the 21st Century (IEA, 2021). Here is the abstract.

Free speech is, with free trade, freedom of enterprise and security of property, one of the key features of classical liberalism. It is currently being undermined, for a variety of plausible reasons, by government, social and mainstream media companies, and the behaviour of individuals, firms and non-profit organisations. Having thrown off the obvious shackles on free speech in the 1960s and 1970s, we are now imposing new forms of restriction on freedom of thought and expression. Young people in particular are being socialised into a censoriousness about dissident behaviour and speech which is reminiscent of totalitarian regimes. One reason for suppressing free speech is concern with ‘hate crimes’. But speech bans have a long history, which shows that, whatever the intent, they are often more likely to hurt disadvantaged groups than protect them. Recent restrictions on speech in western Europe, for example, have been copied to sinister purpose by oppressive governments. Political extremism is more widespread, but less dangerous, than is often supposed by mainstream politicians and commentators. The way to tackle it is by intelligent policing to restrict opportunities for violence rather than by blanket bans on freedom of expression. The presence of disturbing online content is leading governments towards increasing regulation of social media and Internet hosts. But the attempt to eliminate disinformation and harm from the Internet is likely to be doomed to failure. Recent legislative proposals will not achieve what they are intended to achieve, but may cause innovation and competition to suffer. Free speech is considered by both right and left as negotiable or even dispensable when faced with issues such as Covid-19 or Black Lives Matter. In such circumstances our political elites pursue a particular narrative through mainstream and social media and effectively ‘cancel’ those who express opposition or even mild doubt. The prevailing mood of political correctness inhibits comedians and makes people ashamed of what they or their parents used to laugh at in the past. While the consensus may be that there have to be some externally imposed limits on comedic speech, we can’t assume that those who police this speech will act reasonably. A healthy society needs to be able to laugh at itself, even if it occasionally hurts. A neglected area of concern is ‘commercial free speech’ – what advertisers can and can’t say. UK advertising is widely praised worldwide, and a major export earner. But it is increasingly restricted both by government bans and by the Advertising Standards Authority, an unrepresentative body which promotes a form of social engineering and has called for the regulation of political speech. Some aspects of religious freedom are under threat. Public Space Protection Orders and Community Protection Notices have been activated against Christian activists handing out leaflets and holding placards or even silently praying in anti-abortion demonstrations. Proselytising Christians have also been investigated for alleged hate crimes, while some people have lost their jobs for asserting Christian values. Muslims are also particularly at risk from anti-extremist policies. Universities, like other organisations, have the right to prohibit certain types of expression and behaviour from their premises, and impose contractual obligations on employees. However, recent challenges to free speech in higher education, often driven by radical students demanding suppression of ideas, ‘no platforming’ and sanctions against or dismissal of staff, are a worrying phenomenon. A major part of the problem is the lack of institutional diversity in higher education. Trade unions, in the past among the fiercest proponents of free speech, have moved away from this and instead focus on a ‘therapeutic’ role which requires them to protect members from speech that is felt to threaten harm or vaguely defined ‘offence’. ‘Offence’ has indeed been too widely accepted as a reason for speech restrictions. People may feel offended without being offended in a significant way, and even those being offended may suffer no meaningful harm. And while people can be compensated for harm from free speech, there is no way of compensating people for removing the freedom to speak. In any case, on purely pragmatic grounds it is nearly always best to allow serious disagreements to be vigorously debated rather than suppressed.

Download the etext from SSRN at the link.

August 24, 2021 | Permalink

Thursday, August 19, 2021

Douglas on Defamation Actions and Australian Politics

Michael Douglas, The University of Western Australia Law School, is publishing Defamation Actions and Australian Politics in the UNSW Law Journal Forum (2021). Here is the abstract.

In recent years, politicians have been frequent participants in Australian defamation litigation. [Former] Attorney-General Christian Porter’s recent claim against the ABC and journalist Louise Milligan is a notable example of the weaponisation of defamation in Australian politics. This brief article reviews prominent examples of where politicians have commenced or threatened defamation proceedings. The focus is on cases in which politicians are plaintiffs, although some cases mentioned below also involve politician defendants. The article considers whether the trend of politicians litigating defamation is desirable, and how it will be affected by the amendment of the Uniform Defamation Acts once the 2020 Model Defamation Amendment Provisions are implemented. It begins by considering the value of politicians’ reputations, which defamation law may protect.

Download the article from SSRN at the link.

August 19, 2021 | Permalink

The Free Press In Afghanistan After the Taliban Take Over

From the Washington Post, a look at what happens to the nascent free press in Afghanistan now that the Taliban has taken over. 

August 19, 2021 | Permalink

The Free Press In Afghanistan After the Taliban Take Over

From the Washington Post, a look at what happens to the nascent free press in Afghanistan now that the Taliban has taken over. 

August 19, 2021 | Permalink

Thursday, August 12, 2021

UF Brechner Center Opens Paper Competition, Seeks Law Student Entries @BrechnerCenter

From Frank LoMonte, Professor and Director, The Brechner Center for Freedom of Information, University of Florida College of Journalism and Communications

The UF Brechner Center publishes The Journal of Civic Information, a peer-reviewed open-access quarterly journal, to showcase works of "practical scholarship" addressing timely topics that bear on the accessibility of information. 

To encourage law students to do more research and writing about freedom-of-information topics, we have just launched what we envision as a yearly paper competition, with cash awards for the top three papers as selected by an editorial board of scholars.

Completed papers are due by March 25, and details about how to enter are available at this link. (To answer one anticipated question, we are -- at least for this first try -- limiting eligibility to law students rather than all graduate students, because we have not had a shortage of submissions from doctoral students. Also, doctoral students are eligible for a separate annual paper competition run by the National Freedom of Information Coalition, and several have submitted and won cash prizes there.)

Here is a sharable link to the rules and logistics:

https://brechner.org/2021/08/05/competition-offers-cash-prizes-for-law-student-research-papers-addressing-issues-of-access-to-information/

We appreciate your sharing this opportunity with your law students, and thanks.

August 12, 2021 | Permalink

Friday, August 6, 2021

Houston Doctor Sues Anderson Cooper, CNN, For Defamation Over Their Coverage Of Her Support For Hydroxychloroquine

Stella Immanuel, a physician in the Houston TX area, is suing Anderson Cooper and CNN for defamation, alleging that Mr. Cooper's reporting about her support for the drug hydroxychloroquine  (HCQ) was false, and injured her reputation. She also alleges that their characterization of her religious beliefs casts doubt on her ability to carry out her responsibilities as a physician. She is seeking $100,000,000 in damages. Link here to the complaint. Link to the Cooper/CNN segment. 

A number of media outlets have coverage of the suit. Here's a sampling. 

First Amendment Watch

The Mercury News 

Newsweek

August 6, 2021 | Permalink

Thursday, August 5, 2021

Virtual Colloquium on Race, Racism, and American Media: Revised Call For Participation @TonyVarona @LiliLevi_UMLaw @Dave_Fagundes @freepress @AnupamChander

An update on the Virtual Colloquium on Race, Racism and American Media, originally scheduled for September 17, 2021.

The Colloquium will now take place February 25, 2022. The co-convenors are the University of Houston Law Center and Georgetown University Law Center. Here is a link to the revised Call for Participation. 

 

August 5, 2021 | Permalink

FCC Seeking Nominations For the 2021 FCC Chair's Awards For Advancement in Accessibility

From the FCC:

 

FCC SEEKING NOMINATIONS FOR THE 2021 FCC CHAIR’S AWARDS FOR ADVANCEMENT IN ACCESSIBILITY ("FCC CHAIR’S AAA”)

Recognizing Innovations in Technology Access During the COVID-19 Pandemic

By this Public Notice, the Federal Communications Commission (“FCC”) announces the opening of the nomination period for the 10th FCC Chair’s Awards for Advancement in Accessibility (“FCC Chair’s AAA”). The nomination period opens on August 5, 2021 and continues through 11:59 p.m. EDT on September 17, 2021.

The previous awards have recognized groundbreaking innovations in technology and practices that improve access for people with disabilities. The global COVID-19 pandemic has made these awards more relevant and impactful than ever, as the world’s reliance on telecommunications and remote access has skyrocketed. Given this unprecedented historical context, this year, the FCC is soliciting nominations for innovative practices, technologies, and organizations that have creatively leveraged communications and broadband technology, to break down accessibility barriers and ensure that people with disabilities have been able to participate equally in our increasingly connected world.

The Commission is particularly interested in nominations that have addressed the needs of people with disabilities during the COVID-19 pandemic in education, work, and civic life. This includes innovative practices, technologies, policies and research that address longstanding or novel accessibility gaps in remote participation tools, telehealth, access to crucial emergency information, and maintaining important connections between individuals otherwise separated by the pandemic.

Each nomination should include:

· The nominated entity’s name and current contact information.
· The name and contact information of the person submitting the nomination or a notation that the submission is a self-nomination.
· An explanation of why the nomination qualifies for the FCC Chair’s Award.
· A description of the nomination’s impact on access for people with disabilities during the COVID-19 pandemic. Any documentation supporting this work (e.g. media reports, published materials) will help support the nomination.
· A list of any specific efforts, products, policies or materials resulting from the nominees work in this space.

Please send all nominations to: FCCAAA@fcc.gov by 11:59 p.m. EDT, September 17, 2021. Selected nominations will be recognized at a ceremony to be held later in 2021. A subsequent announcement will be made providing further specifics about the awards ceremony, including exact time and location.

The FCC Chair’s AAA was first introduced in 2010 at the FCC’s celebration of the 20th anniversary of the Americans with Disabilities Act. Since the first award ceremony in 2011, the awards have played a key role in FCC efforts to recognize technical advances that have made communications tools more accessible to people with disabilities. For information about prior winners of the FCC’s AAA awards, visit www.fcc.gov/FCCAAA.

For questions or inquiries about the FCC Chair’s AAA ceremony, please contact Deandrea Wilson (202-418-0703), Chantal Virgile (202-418-0056) or call the ASL Consumer Support Line at 1-844-432-2275 via videophone. Inquiries may also be sent to FCCAAA@fcc.gov.

August 5, 2021 | Permalink

Thursday, July 29, 2021

Newly Published: Samantha Barbas, The Rise and Fall of Morris Ernst, Free Speech Renegade (University of Chicago Press) @UBSchoolofLaw

Samantha Barbas, University of Buffalo School of Law, has published The Rise and Fall of Morris Ernst, Free Speech Renegade (University of Chicago Press, 2021). Here from the publisher's website is a description of the book's contents.

In the 1930s and ’40s, Morris Ernst was one of America’s best-known liberal lawyers. The ACLU’s general counsel for decades, Ernst was renowned for his audacious fights against artistic censorship. He successfully defended Ulysses against obscenity charges, litigated groundbreaking reproductive rights cases, and supported the widespread expansion of protections for sexual expression, union organizing, and public speech. Yet Ernst was also a man of stark contradictions, waging a personal battle against Communism, defending an autocrat, and aligning himself with J. Edgar Hoover’s inflammatory crusades. Arriving at a moment when issues of privacy, artistic freedom, and personal expression are freshly relevant, The Rise and Fall of Morris Ernst, Free Speech Renegade brings this singularly complex figure into a timely new light. As Samantha Barbas’s eloquent and compelling biography makes ironically clear, Ernst both transformed free speech in America and inflicted damage to the cause of civil liberties. Drawing on Ernst’s voluminous cache of publications and papers, Barbas follows the life of this singular idealist from his pugnacious early career to his legal triumphs of the 1930s and ’40s and his later idiosyncratic zealotry. As she shows, today’s challenges to free speech and the exercise of political power make Morris Ernst’s battles as pertinent as ever.
The Rise and Fall of Morris Ernst, Free Speech Renegade

July 29, 2021 | Permalink

Monday, July 19, 2021

U.S. Attorney General's Office: New Memo "Restrict[s] the Use of Compulsory Process to Obtain Information From or Records of Members of the News Media"

Just released, from the U.S. Attorney General's Office:

a memo "to restrict the use of compulsory process to obtain information from or records of members of the news media."

 

It reads in part:

 

  1. The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities, as set out below.
  1. This new prohibition applies to compulsory legal process issued to reporters directly, to their publishers or employers, and to third-party service providers of any of the foregoing.  It extends to the full range of compulsory process covered by the current regulations, specifically, subpoenas, warrants, court orders issued pursuant to 18 U.S.C. § 2703(d) and§ 3123, and civil investigative demands. Further, it applies regardless of whether the compulsory legal process seeks testimony, physical documents, telephone toll records, metadata, or digital content.
  1. As with the current regulations, this prohibition on compulsory process does not apply to obtaining information from or records of a member of the news media who is the subject or target of an investigation when that status is not based on or within the scope of newsgathering activities.

There are exceptions, including when the member of the media is "under investigation for a violation of criminal law, such as insider Nor does it apply to a member of the news media who has used criminal methods, such as breaking and entering, to obtain government information," when the member of the media is a member of a foreign terrorist organization or is an agent of a foreign power, or has broken the law to obtain the information ("Nor does it apply to a member of the news media who has used criminal methods, such as breaking and entering, to obtain government information").

 

Link to the press release here.

July 19, 2021 | Permalink

Friday, July 9, 2021

FCC Grants Conditional Waiver To NFL For "Coach to Coach" Communications In Event of Internet Outage

The FCC has conditionally granted the National Football League's request for a waiver of Section 96.39(C) of the Commission's rules "to allow it to continue to operate its coach-to-coach communications system in the limited circumstance of an Internet outage in NFL stadiums, during NFL football games but after authority to operate within the stadium has been obtained from a Spectrum Access System (SAS). For reasons discussed below, we grant Petitioner’s Waiver Request subject to the conditions described herein."

Link here to PDF.

July 9, 2021 | Permalink

Friday, June 25, 2021

CFP: Journal of Free Speech Law @JournalSpeech

From Eugene Volokh, one of the Executive Editors of the Journal of Free Speech Law, a CFP. He notes that the editors would be ready to published articles as early as September, if they receive them as early as August 1st.

 

Mahanoy School Dist. v. B.L. just came down, and it yielded more questions than it answered. Not so good for litigants and government officials, but great for scholars!

The Journal of Free Speech Law, a new peer-reviewed, faculty-edited journal, plans to quickly publish two to four articles on this case, as a symposium issue—not case notes as such, but rather articles on the broader subject (whether K-12 speech, or government as manager more broadly) in light of the new decision. And given our publication speed, these will likely be the first such articles to be published in a full-fledged law journal.

Our plan:

  1. We need to see submissions by Aug. 1 (or earlier), but given the short timeline, we'll be open for rougher submissions than usual. What we want to see, to make our decision, is a clear explanation of the key novel, interesting, and useful contributions that the article would make.
  2. We require exclusive submissions (via Scholastica, https://freespeechlaw.scholasticahq.com/), but we will give an answer within two weeks (our average response time so far is under a week) of Aug. 1. Thus, if we say no, there will be plenty of time to submit to other journals in the August submission cycle.
  3. We plan on publishing the articles online and on Westlaw as soon as the author provides a publishable version, which could be as quickly as early September (or longer, if the author so requires).
  4. Our journal also publishes in print. We expect the print edition to come out towards the end of the year, depending on the timeline for the articles; but we expect that these days the important thing is getting the article out quickly online.
  5. We will set up online symposia on the drafts, so that authors can get feedback from the other authors and from other First Amendment scholars.

Our journal was just founded this year, and will publish its inaugural symposium issue (on regulation of social media platforms) this Summer; the issue we discuss here will be our second. Our robe-and-gown editorial board consists of:

Prof. Amy Adler
Prof. Jane Bambauer
Prof. Ashutosh Bhagwat
Judge Stephanos Bibas
Prof. Vincent Blasi
Judge José A. Cabranes
Prof. Clay Calvert
Dean Erwin Chemerinsky
Prof. Alan Chen
Justice Mariano-Florentino Cuéllar
Judge Douglas H. Ginsburg

Prof. Jamal Greene
Prof. Heidi Kitrosser
Prof. Andrew Koppelman
Prof. Ronald J. Krotoszynski, Jr.
Prof. Toni Massaro
Prof. Michael McConnell
Prof. Helen Norton
Prof. Robert Post
Judge A. Raymond Randolph
Judge Neomi Rao

Prof. Jennifer Rothman
Judge Robert Sack
Prof. Frederick Schauer
Dean Rodney A. Smolla
Prof. Geoffrey Stone
Judge David R. Stras
Judge Jeffrey S. Sutton
Prof. Rebecca Tushnet
Prof. Eugene Volokh
Prof. James Weinstein
Judge Diane Wood

If you have any questions, please e-mail JournalOfFreeSpeechLaw@gmail.com; and please pass this along to others who are interested.

Jane Bambauer
Ashutosh Bhagwat
Eugene Volokh
Executive Editors

June 25, 2021 | Permalink