Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, May 22, 2020

District Court Judge Dismisses OAN Defamation Suit Against Maddow, MSNBC

A U.S. District Court judge has dismissed the lawsuit that Herring Networks, owner of One America News Network, brought against Rachel Maddow and other defendants, based on a statement Ms. Maddow made about the general bent of OAN's content, which the judge quotes in the ruling. 

Herring Networks sued for defamation.  Defendants filed a motion to strike under California's SLAPP statute.

The judge ruled that reasonable viewers familiar with Maddow's views would not take her statements as fact. The judge also considered Maddow's presentation of a Daily Beast article which presented information about OAN, which she held Maddow presented "truthfully and in full." Her analysis is rather extensive. Ultimately the judge dismissed the suit with prejudice. Read the ruling in full here.  More coverage here from the Daily Beast, here from the Times of San Diego. 

May 22, 2020 | Permalink

Pedrioli on Regulating Online Hate Speech: A U.S. Perspective

Carlo A. Pedrioli, Liverpool Hope University, has published Regulating Online Hate Speech: A U.S. Perspective at 6 International Journal of Digital & Data Law 259 (2020). Here is the abstract.

In the early 2010s, Terry Jones of Florida became known for his threats to burn, and for eventually burning, the Koran, the holy book of Muslims. The actions and message of the pastor eventually attracted the attention of figures as prominent as U.S. President Barack Obama and, with transmission around the world via the Internet, spread to countries far from the United States like Afghanistan and Indonesia. The response was explosive. The burning of sacred texts such as the Koran provides particularly rich opportunities for study by academics in a variety of fields. Topics like religion, politics, marginalization, nonverbal communication, intercultural communication, and hate speech come together. Digital dissemination adds an element of contemporary technology to the mix. Drawing upon the Florida Koran-burning case, this paper briefly examines the constitutional regulation of online hate speech in the United States, illustrating how limited the punishment and thus regulation of such hate speech generally are. Hate speech is discourse that aims to promote hatred based on categories such as ethnicity, race, national origin, class, and similar categories. The paper proceeds with a summary of the Florida Koran-burning case, continues with a discussion of relevant constitutional principles, and then moves to constitutional analyses of the Florida case

. Download the essay from SSRN at the link.

May 22, 2020 | Permalink

Thursday, May 21, 2020

Cornell Law School's First Amendment Clinic Opens Applications for Position of Local Journalism Attorney @CornellLaw

Cornell University Law School's First Amendment Clinic is accepting applications for the new position of Local Journalism Attorney. The attorney, based in New York City, will have primary responsibility for developing and managing a New York Metropolitan Area based project dedicated to providing legal services to support local journalism.

The Local Journalism Attorney must have a J.D. or equivalent, be admitted to the New York bar, and have a minimum of three years of relevant experience as a lawyer. The appointment is for a two-year term and is benefits eligible. Reappointment for a third-year is possible based on performance and funding availability.


More information about the posting is available at https://academicjobsonline.org/ajo/jobs/16368.

May 21, 2020 | Permalink

Wednesday, May 20, 2020

Is Local News Also Pop Culture and Entertainment? @openculture @MarkLintsenmayer

Monday, May 11, 2020

NYPD Arrests Journalist Jill Nelson For Writing Graffiti On Storefront

Hyperallergic reports that the NYPD arrested journalist Jill Nelson for writing graffiti (Trump=Plague) on a storefront. Ms. Nelson says that although the officers allowed her to make a call to her husband, they cut off the call after a few seconds. She has asked for an apology and for an expungement of her record. More here. 

Coverage from NBC News here. 

 

May 11, 2020 | Permalink

Tuesday, May 5, 2020

Wright on A Variable Number of Cheers For Viewpoint-Based Regulations of Speech @IUMcKinney

R. George Wright, Indiana University, McKinney School of Law, has published A Variable Number of Cheers For Viewpoint-Based Regulations of Speech. Here is the abstract.

It is widely taken for granted that viewpoint-based restrictions of speech are, as a class, especially disfavored, meriting either absolute prohibition or strict scrutiny. As it turns out, however, this common assumption is both descriptively incorrect and normatively unjustifiable. A typology of the various basic forms of viewpoint-based restriction of speech supports this initially surprising claim. This typology can be constructed out of the obvious uncertainties, ambiguities, equivocations, disparities, and gaps found in the viewpoint-restriction cases. Ultimately, depending upon type and circumstance, and apart from any weight of any relevant government interest, a viewpoint-based speech restriction of speech may deserve anywhere between zero and three cheers.

Download the article from SSRN at the link.

May 5, 2020 | Permalink

Friday, May 1, 2020

Magaldi and Davis on Examining Online Defamation Law Through the Twitter Account of James Woods

Jessica Magaldi, Pace University, and Wade Davis, Minnesota State University, Mankato, are publishing 'Into the Bowels of Hell' Examining Online Defamation Law Through the Twitter Account of James Woods in volume 29 of the Southern Law Journal (Fall 2019). Here is the abstract.

Film actor James Woods is a conservative Twitter personality who uses the platform to provoke and attack celebrities, politicians, commentators, and news media that express liberal and progressive viewpoints – behavior commonly known on the internet as “trolling.” He also has his own trolls. Two lawsuits that stem from incidents on Twitter involving Woods offer an opportunity to explore the ways in which the medium and the law of defamation affect and are affected by one another. This Article analyzes these two lawsuits in an effort to explore the legal nuances and practical realities of asserting a defamation claim arising in a social media context. Section II discusses the factual bases of the lawsuits, their procedural histories, and their resolutions. Section III explores the merits of the defamation claims in both lawsuits by analyzing the elements of a defamation claim as they apply to the facts of each case. Section IV addresses the unique problems that social media defamation litigants face with respect to anonymity, the public figure doctrine, and the actual malice standard. Section V concludes by offering recommendations relating to the law and litigation process, and remedies for social media defamation claims.

Download the article from SSRN at the link.

May 1, 2020 | Permalink

Wednesday, April 29, 2020

FCC Approves Fourth Set of COVID-19 Telehealth Program Applications

The FCC has approved another set of COVID-19 telehealth program applications. Text here. 

More information about the telehealth program, including prior FCC program application approvals, here. 

April 29, 2020 | Permalink

Tuesday, April 28, 2020

FCC Issues Notice of Proposed Rulemaking: One-Ring Scam Calls

The FCC has issued a Notice of Proposed Rulemaking in the matter of one-ring scam calls. 

 

“One-ring scams are annoying and pernicious, waking up many Americans with confusing calls in the middle of the night and tricking them out of their money if they call back,” said FCC Chairman Ajit Pai. “With this effort, this agency shows it’s serious about aggressively combating this scam. I look forward to hearing from the public about their ideas for putting an end to this. And in the meantime, I urge them not to call back if they get calls like this.”

One-ring scammers call American consumers from a foreign country with a number that appears to come from the United States. After a single ring, the scammer hangs up, enticing the consumer to return the “missed call.” Scammers may also leave consumers a voice mail message with a false pretext for the consumer to call them back. In either instance, U.S. consumers incur significant phone charges (of which the scammer gets a share) when they return the international call. Callers often call in the middle of the night and may call multiple times in a row in order to create an appearance of urgency while trying to ensure the call is not answered.

Last year, the Commission issued a consumer alert with tips for consumers to protect themselves. The FCC also advises consumers to not answer or return any calls from numbers they do not recognize, to check whether an unfamiliar number has an international area code before returning the call, and to ask their phone company to block outgoing international calls if they do not make such calls.

In this NPRM, the FCC seeks comment on proposals for implementing the TRACED Act’s requirements to further protect consumers from the one-ring scam, including: allowing voice service providers to block calls highly likely to be associated with a one-ring scam; working with federal, state, and foreign law enforcement and government agencies to combat one-ring scams; building on existing consumer education and outreach efforts; enhancing FCC work with entities that provide call-blocking services; and seeking consensus on what obligations international gateway providers should have in the efforts to stop these calls.

The FCC’s Enforcement Bureau and the Federal Trade Commission recently sent letters to three gateway providers suspected of facilitating COVID-19-related scam robocalls, warning them that if they did not stop such traffic, the Commission would authorize other U.S. voice service providers to block all calls entering the U.S. via these gateway providers. Within 24 hours, those gateway providers stopped carrying those scam robocalls. The NPRM seeks comment on whether such a model could be extended to combat one-ring scam calls.

April 28, 2020 | Permalink

Friday, April 24, 2020

Calls For Papers

Two research-related opportunities:

 

Submissions from practitioners and students welcome.

April 24, 2020 | Permalink

Saturday, April 18, 2020

Post and Rothman on The First Amendment and the Right(s) of Publicity @profrothman

Robert Post, Yale Law School, and Jennifer E. Rothman, Loyola (Los Angeles) Law School, are publishing The First Amendment and the Right(s) of Publicity in volume 130 of the Yale Law Journal (2020). Here is the abstract.

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles. At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests advanced by the right of publicity. We seek to remedy this deficiency by disaggregating four distinct state interests that the right of publicity is typically invoked to protect. We argue that in any given case the right of publicity is characteristically invoked to protect (one or more) of these four interests: the value of a plaintiff’s performance, the commercial value of a plaintiff’s identity, the dignity of a plaintiff, or the autonomous personality of a plaintiff. Plaintiffs’ interests in their identity must always be weighed against defendants’ constitutional interests in their speech. We therefore isolate three constitutional kinds of communication, each with a distinct form of First Amendment protection. A defendant’s misappropriation of a plaintiff’s identity can occur in public discourse, in commercial speech, or in what we call “commodities.” We then discuss how constitutional protections for these three kinds of speech should intersect with the four different interests that right of publicity claims are typically invoked to protect. The upshot is not a mechanical algorithm for producing correct constitutional outcomes, but an illumination of the constitutional stakes at issue in any given right of publicity action. We hope that by carefully surfacing the constitutional and policy stakes that beset the conflict between right(s) of publicity and the First Amendment, we have sketched a map that might substantially assist those who must navigate this tumultuous terrain.

Download the article from SSRN at the link.

April 18, 2020 | Permalink

Friday, April 17, 2020

Call For Applications, First Amendment Fellow: Sandra Day O'Connor College of Law, Arizona State University @ASUCollegeofLaw

The Sandra Day O'Connor College of Law at Arizona State University is accepting applications for the Stanton First Amendment Fellow for its First Amendment Clinic. The full-time position begins August 15, 2020, for a one-year term with the possibility for a second year. The purpose of the fellowship is to enable an experienced litigator to shift gears and develop a new expertise in First Amendment litigation, so the ideal candidate will have an active Arizona bar membership and at least three years of litigation experience.

More information about the posting is available here: https://apply.interfolio.com/75719.

April 17, 2020 | Permalink

Thursday, April 16, 2020

Frosio on How Communication to the Public Affects Internet Architecture @GCFrosio

Giancarlo Frosio, Universite de Strasbourg, CEIPI; Stanford University Law School Center for Internet and Society, is publishing It's All Linked: How Communication to the Public Affects Internet Architecture in volume 36 of the Computer Law & Security Review (forthcoming).

The architecture of the Internet is changing. A novel expansive construction of communication and making available to the public has been shaking the Internet ecosystem. It reaches into basic online activities, such as linking. Departing from well-established international approaches, the Court of Justice of the European Union (CJEU) has recently decided a multitude of cases that redesigned the notion of communication to the public in the Internet, while discussing linking activities in particular. This jurisprudence stands against a fluid legal framework searching for the optimal allocation of intermediary liability of information service providers. Communication to the public is at the center stage of this legislative process as well. EU copyright legislative reform makes Online Content Sharing Service Providers (OCSSP) — the large majority of UGC platforms — communicating to the public. In doing so, the Copyright in the Digital Single Market Directive changes the fundamental rules under which online platforms operate and UGC content is created for a large portion of the connected world. This, in turn, is forcing online intermediaries to remodel the architecture of the Internet accordingly. Proactive filtering — rather than ex ante review of allegedly infringing content and links — is set to become the first commandment governing the Internet of tomorrow.

Download the article from SSRN at the link.

April 16, 2020 | Permalink

Thursday, April 2, 2020

Carroll on How We Talk About the Press @erinccarroll13 @GeorgetownLaw

Erin C. Carroll, Georgetown University Law Center, is publishing How We Talk About the Press in the Georgetown Law Technology Review. Here is the abstract. Erin C. Carroll, How We Talk About the Press, Georgetown Law Technology Review (Forthcoming)

In 2017, the term “fake news” was so popular that it received the “Word of the Year” honor from the American Dialect Society. Since then, its popularity may have abated some, but its use persists. Most obviously, anti-press speakers weaponize the term fake news to undermine journalists and the press as an institution. Perhaps more surprisingly, however, the term is also in regular rotation among many who would seem to support a free and independent press, including scholars, teachers, and journalists themselves. The continued and often-uncritical use of fake news should worry us. As thinkers across disciplines have recognized for centuries, the names we use matter. Names shape the very way we understand things. And this is especially true when it comes to the press. Although conventional wisdom is that press power and freedom spring primarily from the First Amendment, in reality, the doctrine is that the press has no greater rights than any other speaker. Press power and freedom are derived in large part from customs and norms. And those customs and norms draw sustenance from the positive language of the courts, other institutions, and the public about how the press serves the democratic functions of truthful educator, trusted proxy, and fair watchdog. Press power is, in great part, rhetorical power. This rhetorical power is especially fragile in our networked information sphere. As we are coming to understand, when labels or narratives are decontextualized and amplified, we begin to internalize and adopt them, sometimes regardless of their accuracy or how savvy we believe ourselves to be. Moreover, what is blunt and vitriolic generally scales further and faster than what is nuanced or measured. As a label, fake news is arguably becoming so entrenched and normalized that it might ease the way for other terms that rhetorically marry the press to falsity, bias, and laziness—like “pink slime journalism”—to slip into our everyday discourse. If protecting the press was the only goal of curbing anti-press rhetoric that would be enough. But there is another reason to do it. How we talk about the press plays into how we tackle one the biggest challenges of our networked age—stemming information pollution. Fundamental to this effort is separating accurate information from false, trusted sources from manipulated ones, and journalism from propaganda and marketing. If we use labels that conflate these categories, we make a daunting task harder. For these reasons, it is increasingly important that we take care in how we talk about the press.

Download the essay from SSRN at the link.

April 2, 2020 | Permalink

Wednesday, April 1, 2020

Horton on Daily Newspapers and Antitrust: As Relevant and Crucial To Our Democracy as Ever

Thomas Jeffrey Horton, University of South Dakota School of Law, has published Daily Newspapers and Antitrust: As Relevant and Crucial to Our Democracy as Ever in Media Markets and Competition Law: Multinational Perspectives 153 (Antonio Bavasso, David S. Evans, Douglas H. Ginsburg eds.), 2019. Here is the abstract.

Daily newspapers today are under siege. The future viability of traditional daily newspapers is being questions due to the rise of Internet information sources, as well as the current political attacks on the press. This article argues that those predicting "doom and gloom" for the daily newspaper industry are short-sighted, given the continued popularity of high-quality investigative journalism and ever-present need for accountability reporting in our democracy. With many readers consuming daily newspapers' content through their innovative online platforms, the competition of the Internet had increased the quality of newspaper journalism, after a period of declining quality due to aggressive consolidation in the print industry. Discussing the 1970 Newspaper Preservation Act ("NPA"), which was supposed to protect editorial diversity by allowing horizontal economic consolidations, the author observes that it actually led to lower quality journalism and less competitive newspapers. The author argues that the NPA should be repealed, and aggressive competition encouraged between newspapers at both the local and national geographic levels through the rigorous enforcement of the antitrust laws. Newspapers should continue to be analyzed as a distinct product market by antitrust enforcers, and further horizontal mergers and consolidation discouraged, and, if necessary, rejected.

Download the essay from SSRN at the link.

April 1, 2020 | Permalink

Tuesday, March 24, 2020

Sullivan and Tilley on Supreme Court Journalism @IowaLawSchool @LoyolaLaw

Barry Sullivan, Loyola University (Chicago) School of Law, and Cristina Tilley, University of Iowa College of Law, have published Supreme Court Journalism: From Law to Spectacle? at 77 Washington & Lee Law Review 343 (2020). Here is the abstract.

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several decades? This Article seeks to address those questions by comparing the language used in print media coverage of two highly salient cases involving similar legal issues decided fifty years apart: Brown v. Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1. Our study suggests that, at least in highly salient cases, the nature of print media coverage may well have changed dramatically during that fifty-year interval. More specifically, our study suggests that while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective political commitments. That conclusion is striking. First, it suggests that in the ongoing scholarly debate over the nature of the Justices’ approach to their work, the press has chosen sides. Rather than closely interrogating the Court’s work to determine whether particular analyses and results can be defended on legal grounds, contemporary reporting seems to proceed on the assumption that that question lacks salience—because we already know that the Justices’ political views and allegiances are the true drivers of Supreme Court decisions. Thus, contemporary press coverage tends to emphasize such factors as the political affiliation of the president who appointed a particular Justice. Second, it raises questions about the way in which the contemporary press is discharging its responsibility to educate the public about the Court and its work. It also raises the possibility that the public will become predisposed to doubt the Court’s legitimacy, and, indeed, the very legitimacy of the American system of judicial review. If the Court’s decisions really reflect nothing more than the Justices’ political predilections and commitments, or those of the elites to which they belong, it is important for the public to know that. Nothing could be more important than discovering and documenting the fact that the Justices wear no clothes. On the other hand, whether Supreme Court decisions deserve to be viewed in that way is a question that needs to be tested through a careful examination of the Court’s work product. It is something to be proved rather than presumed. The contemporary print media’s seemingly casual assumption that the main point about reporting on the Supreme Court is not to test the validity of the Court’s reasoning, and explore its flaws, but to try to trace connections between the Justices’ voting behavior and their political or other commitments, may well corrode public confidence in the Court. If that occurs unnecessarily, and without adequate justification, the consequences for the institution of judicial review may well be dire. Moreover, if the public’s expectations are lowered, so too may be the standards the Justices set for themselves and each other. In other words, if the press leads us to believe that the Court’s work product is nothing more than politics, that may well become a self fulfilling prophecy—if it has not already happened.
Download the article from SSRN at the link.

March 24, 2020 | Permalink

Chafetz on Congressional Overspeech @joshchafetz

Josh Chafetz, Cornell Law School, is publishing Congressional Overspeech in volume 89 of Fordham Law Review. Here is the abstract.

Political theater. Spectacle. Circus. Reality show. We are constantly told that, whatever good congressional oversight is, it certainly isn’t those things. Observers and participants across the ideological and partisan spectrums use those descriptions as pejorative attempts to delegitimize oversight conducted by their political opponents or as cautions to their own allies of what is to be avoided. Real oversight, on this consensus view, is about fact-finding, not about performing for an audience. As a result, when oversight is done right, it is both civil and consensus-building. While plenty of oversight activity does indeed involve bipartisan attempts to collect information and use that information to craft policy, this Article seeks to excavate and theorize a different way of using oversight tools, a way that focuses primarily on their use as a mechanism of public communication. I refer to such uses as congressional overspeech. After briefly describing the authority, tools and methods, and consensus understanding of oversight in Part I, the Article turns to an analysis of overspeech in Part II. The three central features of overspeech are its communicativity, its performativity, and its divisiveness, and each of these is analyzed in some detail. Finally, Part III offers two detailed case studies of overspeech: the Munitions Inquiry of the mid-1930s, and the McCarthy and Army-McCarthy Hearings of the early-1950s. These case studies not only demonstrate the dynamics of overspeech in action but also illustrate that overspeech is both continuous across and adaptive to different media environments. Moreover, the case studies illustrate that overspeech can be used in the service of normatively good, normatively bad, and normatively ambivalent political projects. Overspeech is a potent congressional tool—and, like all tools, it can be put to a variety of uses.

Download the article from SSRN at the link.

March 24, 2020 | Permalink

Monday, March 23, 2020

Mostert on Free Speech and Internet Regulation @KCL_Law

Frederick Mostert, King's College London, has published Free Speech and Internet Regulation at 14 Journal of Intellectual Property Law & Practice 607 (August 2019). Here is the abstract.

The article analyses free speech and internet regulation. Governments have come up with new regulatory proposals for privately-controlled platforms virtually overnight in contrast to their traditional hands-off approach to platform regulation. The Internet Safety Report in the UK, the EU Directive on Copyright in the Digital Single Market and the US President’s Memorandum on Combating Trafficking in Counterfeit and Pirated Goods, and a slew of other regulatory proposals, were produced within an extraordinarily short space of time. In particular, free speech has always required public forums to flourish, but shaping these forums to the challenging contours of today’s online world presents unique challenges. Social media forums serve as the prime source of knowledge and human thought for many users and have taken on the identity of ‘the modern public square’, as noted by the US Federal Supreme Court.

Download the article from SSRN at the link.

March 23, 2020 | Permalink

Monday, March 16, 2020

Marmor on Privacy in Social Media @CornellLaw

Andrei Marmor, Cornell Law School, has published Privacy in Social Media as Cornell Legal Studies Research Paper No. 20-10. Here is the abstract.

This paper is about the state of privacy in social media. Most people’s immediate concern about privacy in social media, and internet platforms more generally, relate to data protection. People fear that information they post on various platforms is potentially abused by corporate entities, governments, or even criminals, in all sorts of nefarious ways. The main premise of this paper is that that concerns about data protection, legitimate and serious as they may be, are not, mostly, about the right to privacy. Privacy is about control over the presentation of the self, not about protection of property rights. From the perspective of privacy as self-presentation, I argue that social media is, generally, very conducive to privacy—in fact, often too much so. The main tension in the domain of social media is between privacy and authenticity: social media enables a great deal of privacy at the expense of truth and authenticity. But the medium also comes with dangers of exposure that carry serious risks to privacy, potentially undermining peoples’ ability to control what aspects of themselves they present to others. Privacy in social media is a mixed bag, pulling in opposite directions, none of them free of serious concerns.

Download the article from SSRN at the link.

March 16, 2020 | Permalink

Yuvaraj and Giblin on Whether Contracts Are Enough: An Empirical Study of Author Rights in Australian Publishing Agreements @rgibli @MelbLawSchool @MonashLawSchool

Joshua Yuvaraj, Monash University Faculty of Law, and Rebecca Giblin, University of Melbourne Law School, are publishing Are contracts enough? An empirical study of author rights in Australian publishing agreements in volume 44 of Melbourne University Law Review (2020). Here is the abstract.

A majority of the world’s nations grant authors statutory reversion rights: entitlements to reclaim their copyrights in certain circumstances, such as their works becoming unavailable for purchase. In Australia (as in the UK) we have no such universal protections, leaving creator rights to be governed entirely by their contracts with investors. But is this enough? We investigate that question in the book industry context via an exploratory study of publishing contracts sourced from the archive of the Australian Society of Authors. We identify serious deficiencies in the agreements generally as well as the specific provisions for returning rights to authors. Many contracts were inconsistent or otherwise poorly drafted, key terms were commonly missing altogether, and we demonstrate that critical terms evolved very slowly in response to changed industry realities. In response to this new evidence we propose that consideration be given to introducing baseline minimum protections with the aim of improving author incomes, investment opportunities for publishers and access for the public.

Download the article from SSRN at the link.

March 16, 2020 | Permalink