Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, May 11, 2022

Newly Published: Michael Bérubé and Jennifer Ruth, It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom (Johns Hopkins University Press, 2022) @MichaelBerube1 @JHUPress

Newly published: Michael Bérubé And Jennifer Ruth, It's Not Free Speech: Race, Democracy, and the Future of Academic Freedom (Johns Hopkins University Press, 2022). Here from the publisher's website is a description of the book's contents.

How far does the idea of academic freedom extend to professors in an era of racial reckoning? The protests of summer 2020, which were ignited by the murder of George Floyd, led to long-overdue reassessments of the legacy of racism and white supremacy in both American academe and cultural life more generally. But while universities have been willing to rename some buildings and schools or grapple with their role in the slave trade, no one has yet asked the most uncomfortable question: Does academic freedom extend to racist professors? It's Not Free Speech considers the ideal of academic freedom in the wake of the activism inspired by outrageous police brutality, white supremacy, and the #MeToo movement. Arguing that academic freedom must be rigorously distinguished from freedom of speech, Michael Bérubé and Jennifer Ruth take aim at explicit defenses of colonialism and theories of white supremacy—theories that have no intellectual legitimacy whatsoever. Approaching this question from two angles—one, the question of when a professor's intramural or extramural speech calls into question his or her fitness to serve, and two, the question of how to manage the simmering tension between the academic freedom of faculty and the antidiscrimination initiatives of campus offices of diversity, equity, and inclusion—they argue that the democracy-destroying potential of social media makes it very difficult to uphold the traditional liberal view that the best remedy for hate speech is more speech. In recent years, those with traditional liberal ideals have had very limited effectiveness in responding to the resurgence of white supremacism in American life. It is time, Bérubé and Ruth write, to ask whether that resurgence requires us to rethink the parameters and practices of academic freedom. Touching as well on contingent faculty, whose speech is often inadequately protected, It's Not Free Speech insists that we reimagine shared governance to augment both academic freedom and antidiscrimination initiatives on campuses. Faculty across the nation can develop protocols that account for both the new realities—from the rise of social media to the decline of tenure—and the old realities of long-standing inequities and abuses that the classic liberal conception of academic freedom did nothing to address. This book will resonate for anyone who has followed debates over #MeToo, Black Lives Matter, Critical Race Theory, and "cancel culture"; more specifically, it should have a major impact on many facets of academic life, from the classroom to faculty senates to the office of the general counsel.

May 11, 2022 | Permalink

Wednesday, May 4, 2022

Sherwin on Anti-Speech Acts and the First Amendment @RKSherwin @hlpronline @NYLawSchool

Richard K. Sherwin, New York Law School, is publishing Anti-speech Acts and the First Amendment at 16 Harvard Law & Policy Review (2022). Here is the abstract.

In many states today, there are laws on the books designed to protect the legitimacy and fairness of elections by barring the knowing or reckless dissemination of demonstrably false statements. Regulating this kind of deliberate deception protects the public against the erosion of First Amendment freedoms – such as the freedom to think and express one’s own thoughts and to meaningfully deliberate in an electoral process free from deliberate efforts to flood the zone of public discourse with confusion and mistrust based on deliberate and provable falsehoods. Some of these regulations, however, have been successfully challenged on First Amendment grounds. In this essay, I contend that using First Amendment doctrine to shield illiberal attacks on the electoral process mocks the democratic values for which that doctrine stands. Strategies of deception designed to disrupt public discourse in the electoral context constitute a special form of violence against speech and against meaningful engagement in individual and collective deliberation. That is why I call the illiberal speech acts that cause this harm “anti-speech acts.” Properly understood, anti-speech acts lack meaningful expressive content. Their purpose is not to advance opinions or ideas in the service of truth or judgment; rather, their objective is to jam deliberation – to deliberately sow confusion and mistrust – by propagating demonstrably false information upon which others are meant, or are reasonably expected, to rely. Profiting from such false coinage is a fraud upon the public. This danger is particularly acute in a digital communication eco-system where proprietary algorithms funnel and shape political discourse to advance not truth, but profit derived from maximized attention share online. The burden of this essay is to make as plain as possible why traditional doctrinal reliance upon “more speech” as an adequate response to deliberate falsehoods in the electoral context disserves core First Amendment values and practices in the digital age. Courts that use free speech doctrine to shield those who deliberately or recklessly disseminate demonstrably false statements in pursuit of fraudulent electoral or commercial gain subvert the very values they purport to uphold. Freedom of thought and expression and the continued integrity of the electoral process are served (not hindered) by prudent regulation of anti-speech acts.

Download the essay from SSRN at the link.

May 4, 2022 | Permalink

Wednesday, April 20, 2022

Bunker and Erickson on The Jurisprudence of Public Concern in Anti-SLAPP Law: Shifting Boundaries in State Statutory Protection of Free Expression @m_bunker

Matthew D. Bunker, Professor of Journalism Emeritus, University of Alabama, and Emily Erickson, Professor, Department of Communications California State University, Fullerton, have published The Jurisprudence of Public Concern in Anti-SLAPP Law: Shifting Boundaries in State Statutory Protection of Free Expresssion, at 44 Hastings Communications and Entertainment Law Journal 133 (2022).  Download the full text at the link.

April 20, 2022 | Permalink

Monday, April 18, 2022

Jefferson on Lawyer Lies and Political Speech @reneeknake @UHouston

Renee Knake Jefferson, University of Houston Law Center, has published Lawyer Lies and Political Speech at 31 Yale Law Journal Forum 114 (2021). Here is the abstract.

Lawyer lies designed to sabotage valid election results are not protected political speech under the First Amendment. Ethics rules governing candor and frivolous litigation require sanctions, if not disbarment. Moreover, the duty of candor should be extended from the courthouse to the public square when lawyer lies threaten our democracy.

Download the article from SSRN at the link.

April 18, 2022 | Permalink

Thursday, March 31, 2022

ABA Forum on Communications Law Hosts "The Mind of the Censor" With Robert Corn-Revere @JosephTomain

The American Bar Association Forum on Communications Law and Communications Lawyer will host "The Mind of the Censor": A Book Discussion on April 7, 2022 via Zoom. Robert Corn-Revere, author of The Mind of the Censor and the Eye of the Beholder, will discuss his book and Floyd Abrams, Mary Ann Franks, and Nadine Strossen will provide commentary. Joseph Tomain will be the moderator. 

More about the event here, including information about how to register.

The event is free and open to the public.

 

Image

March 31, 2022 | Permalink

Monday, January 24, 2022

Chen on Cheap Speech Creation @profalankchen

Alan Chen, University of Denver Sturm College of Law, has published Cheap Speech Creation at 54 University of California Davis 2405 (2021). Here is the abstract.

As we look back on Professor Eugene Volokh's predictive article about cheap speech, it is worth examining what other elements of the speech and media landscape, as well as the supporting legal infrastructure, have changed over that same period. This Essay focuses on the substantial reduction in the cost of speech creation, as opposed to distribution. After briefly discussing the accuracy of many of Volokh's most important predictions, it examines innovative technological changes that have enabled a larger number and more diverse range of people to engage in speech creation because of the rapidly shrinking costs of doing so by employing user-friendly interfaces. It provides examples of speech of profound public concern that has resulted from such changes. The Essay then traces the corresponding evolution in First Amendment doctrine and legal scholarship that has expanded the concept of what types of speech creation are covered by the free speech clause. Finally, it addresses some negative externalities of cheap speech creation, and how the law might confront the challenges presented by such costs without sacrificing speech creation's critical expressive value.

Download the article from SSRN at the link.

January 24, 2022 | Permalink

Friday, January 14, 2022

Younas on a Summar of Media Laws and Regulations in Central Asia @AmmarYounas3

Ammar Younas, University of Chinese Academy of Sciences; Ai Mo Innovation Consultants, has published Summary of Media Laws and Regulations in Central Asia. Here is the abstract.

This study is an attempt to provide a summary of the legal progression related to the Media Laws in Post-Communist Central Asia. This study observes that the ideological context of the legal systems has impacted, not only on substantive components but on the procedural parts of the media laws as well. By using the examples of 5 Central Asian countries, a case has been built to highlight the legal progression in media laws in the region. It can be observed that the procedural matters are designed in a way that they can be seen correlating with the ideological contexts of these countries as well as new innovation technologies.

Download the paper from SSRN at the link.

January 14, 2022 | Permalink

Thursday, January 13, 2022

Heese, Perez Cavazos, and Peter on When the Local Newspaper Leaves Town: The Effects of Local Newspaper Closures on Corporate Misconduct @HarvardHBS @CDPeter84 @RSMErasmus @UCSanDiego

Jonas Heese, Harvard University Business School, Gerardo Perez Cavazos, University of California, San Diego, and Caspar David Peter, Erasmus University Rotterdam, Rotterdam School of Management, are publishing When the Local Newspaper Leaves Town: The Effects of Local Newspaper Closures on Corporate Misconduct in the Journal of Financial Economics. Here is the abstract.

We examine whether the local press is an effective monitor of corporate misconduct. Specifically, we study the effects of local newspaper closures on violations by local facilities of publicly listed firms. After a local newspaper closure, local facilities increase violations by 1.1% and penalties by 15.2%, indicating that the closures reduce firm monitoring by the press. This effect is not driven by the underlying economic conditions, the underlying local fraud environment, or the underlying firm conditions. Taken together, our findings indicate that local newspapers are an important monitor of firms’ misconduct.

Download the article from SSRN at the link.

January 13, 2022 | Permalink

Monday, January 10, 2022

Green and Roiphe on Lawyers and the Lies They Tell @rroiphe @NYLawSchool

Bruce A. Green, Fordham Law School, and Rebecca Roiphe, New York Law School, are publishing Lawyers and the Lies They Tell in volume 69 of the Washington University Journal of Law and Policy. Here is the abstract.

Noting that the First Amendment protects lies about the government made in the public square, this article explores whether lawyers’ free speech rights ought to be different from that of other speakers. The law holds lawyers to a more demanding standard of conduct than others when it comes to aspects of lawyers’ fiduciary relationships with courts and clients. But how much more demanding can the law be when it comes to lawyers’ speech — in this case, false political speech? Applying the current First Amendment framework, we question the bar’s assumption that lawyers’ speech outside of these contexts can be regulated more restrictively than others. We disagree with the premise that lawyers do not deserve the same robust protection for disfavored speech that the First Amendment affords speakers in general. The constitutional case law invites us to identify and scrutinize the bar’s regulatory assumptions and rationales, including the idea that all lies reflect a dishonest character that presages future dishonesty in law practice, or that all lawyers’ lies diminish public respect for the profession. We argue that the bar’s rationales do not hold up well on close examination

Download the article from SSRN at the link.

January 10, 2022 | Permalink

Monday, December 13, 2021

Call For Applications: Pioneers Chair in Telecommunications, Department of Telecommunications, Pennsylvania State University @penn_state

The Donald P. Bellisario College of Communications at Penn State University is seeking applications for the position of Pioneers Chair in Telecommunications in the Department of Telecommunications. This is a senior-level, endowed position with the appointment to be made at the rank of tenured, full Professor.

     

The successful candidate for the Pioneers Chair shall have a terminal degree in mass communications, law, public policy, business, economics, or any related discipline and a substantial background in one or more of the following: technology, economics, law and policy; telecommunications and broadband management, entrepreneurship, ethics, diversity and inclusion, and global infrastructure, media industry practices or governance. 

 

Candidates may have expertise in fields such as Digital Inequalities; Big Data and Data Analytics; ICTs and Culture; Artificial Intelligence, Internet of Things, Videogames and Interactive Media; Social Media; E-Business; Internet governance, Intellectual Property, eSports, entertainment fields, technology and environmental degradation, and other related areas. All theoretical and methodological approaches are welcomed.

 

Candidates may be considered based on experience in teaching, research, law, commerce, governance, public engagement or some combination of them.  A prior history of an active research agenda with publication and successful grant seeking, as well as significant contributions to the public interest will be very favorably considered. We seek candidates who will use the position to conduct research and engage with the public, industry, and other stakeholders to promote the advancement of telecommunications for the public good. Candidates whose work is global or international in scope are encouraged to apply.

 

Applications for the position should include a cover letter, current curriculum vitae, and the names and contact information of three references.

Review of applications will begin on November 30, 2021 and the search shall remain open until filled.

 

The Department of Telecommunications works with external constituencies, policymakers and the public to study the social, economic, legal and political effects of existing and emerging forms of electronic media. Through teaching, research and service, the department addresses pressing questions associated with the global communication system. 

 

The department is committed to enhancing the potential of communication technologies to promote democracy, diversity and social equity.  We aim to be identified among our peer institutions and the public as a national and international leader in scholarship and research, and for the quality and achievements of our faculty, students, and alumni.

More information about the position and application information is available here. 

 

December 13, 2021 | Permalink

Friday, December 10, 2021

Norton on Manipulation and the First Amendment

Helen L. Norton, University of Colorado Law School, is publishing Manipulation and the First Amendment in the William & Mary Bill of Rights Journal. Here is the abstract.

This Essay draws from ethicists’ insights to explain how manipulation can inflict harms distinct from those imposed by coercion and deception, and to explain why addressing these distinct harms is a government interest sufficiently strong to justify appropriately tailored interventions. More specifically, the key features of manipulation—as defined by ethicists Daniel Susser, Beate Roessler, and Helen Nissenbaum—are a speaker’s hidden efforts to shape listeners’ decision-making that target and exploit those listeners’ vulnerabilities in ways that the targets are not consciously aware of, and in ways that those targets could not easily become aware of if they were to try This Essay then explores how these conceptual tools also help us understand when, how, and why government can regulate manipulation consistent with the First Amendment. In commercial settings, more specifically, it proposes that the Court should refine and extend commercial speech doctrine to add “manipulative” commercial speech to the commercial speech it currently treats as entirely unprotected by the First Amendment because it frustrates listeners’ interests. This move tracks the original theoretical justifications of the commercial speech doctrine as steeped in protecting listeners’ First Amendment interests. When we recall that false and misleading commercial speech, as well as commercial speech related to illegal activity, loses its First Amendment protection precisely because it frustrates listeners’ First Amendment interests, we can see that the same can be true of manipulative commercial speech: it frustrates listeners’ interests by seeking to covertly influence those listeners’ choices without their conscious awareness and by targeting and exploiting their vulnerabilities. Filling this doctrinal lacuna would also help fill enforcement lacunae within current law. Even though existing consumer protection statutes frequently prohibit “unfair” as well as “deceptive” trade practices, to date enforcement efforts have focused almost entirely on allegedly deceptive practices—largely because of the conceptual difficulty in defining and describing illegally “unfair” practices. Here too ethicists give us the conceptual tools to help us understand why manipulation can be regarded as “unfair” to listeners even when it is hard to characterize as deceptive in traditional terms. This then requires that we have a workable principle for identifying online commercial speech that is manipulative (and thus unprotected by the First Amendment). To this end, this Essay consider two possibilities: a) focusing on evidence of interfaces’ manipulative success in changing consumers’ choices; and b) targeting interfaces that display key manipulative features that increase the risk of manipulation. Finally, this Essay briefly examines how online manipulation in the political setting poses harms of its own that may also justify appropriately tailored regulatory intervention (even while recognizing that the First Amendment barriers to such regulation are significantly greater in this context than in the commercial setting) and closes by highlighting some possible interventions that deserve further consideration.

Download the essay from SSRN at the link.

December 10, 2021 | Permalink

Thursday, December 9, 2021

Call For Applications: Yale Information Society Project/Media Freedom & Information Access Clinic Fellowship Opening

 

Media Freedom & Information Access Clinic (MFIA) Clinical Fellowship Opening

CLINICAL FELLOWSHIP OPENING

July 1, 2022

The Yale Information Society Project is now accepting applications for a fellowship position with the Media Freedom & Information Access Clinic (MFIA), beginning in July 2022. MFIA is a law student clinic that supports robust investigative journalism, promotes the public’s right of access to information, and protects freedom of expression.

The ideal candidate will have at least two years of relevant litigation experience, including some demonstrated interest in the fields of media law, First Amendment, FOIA, Internet law, administrative law, or intellectual property law.

 

About the MFIA Clinic

Founded in 2009, MFIA was the first law school clinic dedicated to defending the rights of newsgatherers and promoting government transparency. It evolved out of the recognition that new technologies were forcing radical changes on the media market and leaving established news organizations in a financial condition that precluded them from either pursuing the affirmative litigation essential to effective newsgathering or vigorously fighting efforts by governments and others to unmask confidential sources and prevent whistleblowing.

MFIA helps to fill these gaps by providing pro bono legal services to journalists, activists and academics who lack access to the legal services needed to exercise their First Amendment rights and to hold governments accountable. The Clinic pursues affirmative litigation to enforce newsgathering rights, compel access to information and prevent the spread of disinformation, advises on prepublication issues, and defends against lawsuits seeking to punish newsgatherers and publications. MFIA also develops and implements litigation strategies and policy initiatives for achieving structural change in the rules governing government transparency and accountability.

MFIA is a program of the Abrams Institute for Freedom of Expression at Yale Law School and is administered by the Yale Information Society Project (ISP). Both the ISP and the Abrams Institute are directed by Knight Professor of Constitutional Law and the First Amendment Jack Balkin. The Clinic is directed by Abrams Clinical Lecturer and Senior Research Scholar David Schulz, an experienced media litigator who also serves as Senior Counsel to the Media Practice Group at Ballard Spahr, LLP.

Over the past decade, the MFIA Clinic has achieved successes for a wide range of clients, from individual journalists at start-up websites, to such major news organizations as The New York TimesThe Guardian, the Associated Press, and ProPublica. It has also successfully represented a range of investigative advocacy clients, from individual civil rights activists to international rights organizations such as Human Rights Watch and Privacy International. The Clinic has a diverse docket organized loosely into four broad areas:

Newsgathering and publication: Defending those exercising the rights afforded by the Constitution’s press clause in a world where online publishing is widespread, and litigating issues that shape the ability of journalists to gather news, including prior restraints, privacy, and the use of new technologies. Current cases include challenges to state drone regulations that impede newsgathering, and to the abusive use of governmental power to punish disfavored news reporting.

Government accountability: Securing information needed for democratic oversight of government operations at both the state and federal level. The Clinic’s current focus includes cases seeking to hold law enforcement and intelligence agencies accountable, including for their actions or inactions leading up to January 6, and to support local investigative journalism in Connecticut, New York and New England.

Constitutional access: Enforcing and expanding the constitutional right of access to governmental proceedings and related records. Current matters include a challenge to the closure of all domestic abuse proceedings in Puerto Rico and motions seeking to define the scope of public access to classified information placed into the records of court proceedings.

Open data: Ensuring access to scientific information and data vital to scientific advancement and fact-based regulatory decisions. Current cases seek to achieve the level of access to medical data needed to ensure the integrity of the new drug approval process and to facilitate academic research.

MFIA also runs the “DocProject,” a dedicated team of Yale law students working under the supervision of experienced media lawyers to advise documentarians and independent filmmakers during the production phase of their projects. The project provides advice on libel, privacy, and other newsgathering issues.

The MFIA website provides more detail about the Clinic’s current caseload.

About the Fellowship

MFIA seeks candidates for this position with at least two years of relevant experience who are interested in pursuing a career in litigation or public advocacy on issues surrounding digital-age free expression and government transparency. Previous Fellows have gone on to work in-house at media companies and law firm media practices, at non-governmental organizations, or as law school clinical professors.

The Fellow will work closely with the Clinic’s team of litigators, which currently includes Clinic Director David Schulz, another full-time Fellow, and two visiting clinical lecturer, Sandra Baron and Jennifer Borg. The fellowship provides the opportunity to gain hands-on experience litigating cutting edge issues, to supervise and teach law students, to work on legal scholarship, and to participate in the intellectual life of the Yale ISP. The duties of the Fellow include:

  • assuming overall responsibility for selected cases on the MFIA docket and supervising Yale Law School students in the Clinic;
  • assisting the Clinic’s intake process and shaping its docket;
  • teaching several substantive and skill-based classes to students as part of the Clinic’s weekly seminar;
  • supervising summer law student interns at the Clinic and covering Clinic cases during semester breaks;
  • coordinating the Access and Accountability Conference hosted each fall by MFIA and the Abrams Institute;
  • engaging in the scholarly activities of the ISP, which include regular academic lunches, workshops, conferences, and talks.

Fellows must live in the New Haven area during their fellowship. The fellowship starts on July 1 and lasts for one year, renewable for a second year. The salary for the fellowship will be $75,000. Fellows also receive Yale health benefits and access to university facilities, as well as a travel budget for academic and clinic conferences.

Application Instructions

Applications will be reviewed on a rolling basis and must be submitted no later than January 17, 2022. Applications should include:

  • A statement of no more than three (3) pages describing the applicant’s interest in the fellowship, relevant practice experience, and career goals;
  • A copy of the applicant’s resume;
  • A law school transcript; and
  • At least one sample of recent legal writing, preferably a brief or memorandum.

***Please indicate clearly in your application materials that you are applying for the MFIA Fellowship***

Application materials should be sent (in electronic form) to Heather Branch at heather.branch@yale.edu.

For further information, please feel free to contact MFIA Clinic Director David Schulz at david.schulz@yale.edu.

Yale University considers applicants for employment without regard to, and does not discriminate on the basis of, an individual’s sex, race, color, religion, age, disability, status as a veteran, or national or ethnic origin; nor does Yale discriminate on the basis of sexual orientation or gender identity or expression. Title IX of the Education Amendments of 1972 protects people from sex discrimination in educational programs and activities at institutions that receive federal financial assistance. Questions regarding Title IX may be referred to the University’s Title IX Coordinator, at TitleIX@yale.edu, or to the U.S. Department of Education, Office for Civil Rights, 8th Floor, Five Post Office Square, Boston MA 02109-3921. Telephone: 617.289.0111, Fax: 617.289.0150, TDD: 800.877.8339, or email: ocr.boston@ed.gov.

December 9, 2021 | Permalink

Wednesday, December 8, 2021

Abel on Cop-"Like": The First Amendment, Criminal Procedure, and Police Social Media Speech @UCHastingsLaw @StanLRev

Jonathan Abel, University of California, Hastings, College of Law, is publishing Cop-'Like': The First Amendment, Criminal Procedure, and Police Social Media Speech in the Stanford Law Review. Here is the abstract.

What happens when a law enforcement officer makes an offensive comment on social media? Increasingly, police departments, prosecutors, the courts, and the public have been confronted with the legal and normative questions resulting from officers’ racist, sexist, and violent social media comments. On the one side are calls for severe discipline and even termination. On the other side are demands that officers, like others, be permitted to express their views without fear of government retaliation. To this point, the regulation of police social media speech has largely been conceived of in First Amendment terms. But criminal procedure doctrine has also begun to be employed in the regulation of police social media speech. Because an officer’s comments may affect her ability to testify, criminal procedure and, specifically, Brady v. Maryland, have great potential to govern this difficult area of conduct. By using both First Amendment and criminal procedure doctrines to analyze the problem of police social media speech, the Article is able to shed new light on the problem and on possible solutions. Among its core contributions, this Article argues: (1) There is a la-tent and irreconcilable tension between the First Amendment and criminal procedure paradigms for regulating officers’ speech. (2) Pseudonymous, private, and otherwise-“hidden” speech presents a significant problem that is both ignored and exacerbated by the First Amendment paradigm. It can be addressed only by a criminal procedure approach to regulating police social media speech. (3) Police departments and prosecutors’ offices must start to proactively monitor their officers’ social media speech, as the failure to do so undermines officers’ free speech rights, defendants’ criminal procedure rights, and the public’s faith in the legitimacy of the police force.

Download the article from SSRN at the link.

December 8, 2021 | Permalink

Wednesday, December 1, 2021

Langvardt on Whether the First Amendment Can Scale @kylelangvardt @UNLCollegeofLaw @JournalSpeech

Kyle Langvardt, University of Nebraska (Lincoln), College of Law, has published Can the First Amendment Scale? at 1 J. Free Speech Law 273 (2021). Here is the abstract.

American judges today preside over a laissez-faire regime of “editorial discretion” for private media entities. That approach promotes freedom of speech when applied to entities such as newspapers that handle content at a relatively small scale. But applied to entities such as Facebook that han-dle millions of items of third-party content a day, the laissez-faire ap-proach threatens free speech by concentrating unchecked censorial power in the hands of a few companies. That outcome is probably avoidable, but only at the price of difficult transformations in First Amendment law that seem to carry their own significant risks. These changes will include a weakening in the editorial concept and a diminished role for the judiciary in defining the public law of free speech.

Download the article from SSRN at the link.

December 1, 2021 | Permalink

Friday, November 19, 2021

Gligorijevic on Taming the "Chilling Effect" of Defamation Law: English Experience and Implications for Australia @FederalReview

Jelena Gligorijevic, ANU College of Law, is publishing Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia in volume 50 of the Federal Law Review (2022). Here is the abstract.

The ‘chilling effect’ of defamation law has driven legislative action narrowing this tort’s scope and operation. As substantial reforms come into effect across Australia, this article provides a detailed analysis of how defamation law in the United Kingdom has developed since similarly narrowing reforms took effect there almost a decade ago, and the implications this will have for Australia. Two important aspects of reform in both jurisdictions are the serious harm threshold, and the public interest defence. Both are targeted at narrowing the tort, and taming its ‘chilling effect’. Although both of these two changes have definitively narrowed the tort in the United Kingdom, neither of them has revolutionised this tort or abolished its core purpose to protect reputation against false imputations. Given the consistency in legislative purpose and framing of the new provisions as between the two jurisdictions, Australian courts should, consistently with their English counterparts, exercise caution when interpreting the new threshold and the new defence, to ensure they do not tread too far from the deeper principles underpinning the tort, even in its narrower, tamer form.

Download the article from SSRN at the link.

November 19, 2021 | Permalink

Carr on Free Speech and Anti-Democratic Violence @TheNewSchool

Andy Carr, The New School, New School for Social Research, Department of Politics, is publishing Free Speech and Anti-Democratic Violence at 18 Stan. J. C.R. & C.L. __ (Forthcoming). Here is the abstract.

The resurgence of far-right extremist groups—like “sovereign” militias, white supremacists, and avowedly fascist gangs—has exposed the First Amendment’s vulnerabilities to the “leaderless resistance” model of extremist organizing. This model, first popularized by white supremacist Louis Beam, specifically aims to insulate extremist leaders from liability when their followers engage in violence. It does so through fragmented structures and coded messages: Leaders use indirect references in speaking to disparate followers, without specificity (of targets) or immediacy (of corresponding violence), as required, e.g., for “incitement” under Brandenburg v. Ohio. This Article makes two contributions. First, it articulates this “gap” with precision, drawing upon recent, mostly overlooked cases while explaining the limits of extant free speech exceptions. Second, it reformulates Professor Clay Calvert’s recent proposal for opening extremist group leaders to vicarious liability, including a discussion of how to avoid overly broad adjustments that may impinge on other kinds of speech.

Download the article from SSRN at the link.

November 19, 2021 | Permalink

Tuesday, November 16, 2021

Lai on The Natural Right To Parody: Assessing the (Potential) Parody/Satire Dichotomies in American and Canadian Copyright Laws @BCLAW

Amy Lai, Boston College Law School; University of Cambridge; Free University Berlin, has published an updated version of The Natural Right to Parody: Assessing the (Potential) Parody/Satire Dichotomies in American and Canadian Copyright Laws. Here is the abstract.

This paper argues that the parody provisions in American and Canadian laws need to be reformed to stimulate creativity and enable free expressions.

Originally in Windsor Yearbook of Access to Justice 2018; Updated Version Republished on SSRN, January 2021)

November 16, 2021 | Permalink

Friday, November 12, 2021

Goldberg on First Amendment Contradictions and Pathologies in Discourse @GoldbergPrime @arizlrev

Erica Goldberg, University of Dayton School of Law, is publishing First Amendment Contradictions and Pathologies in Discourse in the Arizona Law Review. Here is the abstract.

A robust, principled application of the First Amendment produces contradictions that undermine the very justifications for free speech protections. Strong free speech protections are justified by the idea that rational, informed deliberation leads to peaceful decision-making, yet our marketplace of ideas is crowded with lies, reductive narratives, emotional appeals, and speech that leads to violence. Our current First Amendment model creates pathologies in discourse that are exacerbated in our modern age of easy communication. The reason for these pathologies lies in the relationship between reason and emotion, both in human psychology and in First Amendment doctrine. But the solution to these speech pathologies is not to dramatically alter First Amendment doctrine, which, despite claims that the First Amendment is ill-equipped to deal with modern problems, is needed now more than ever.

Download the article from SSRN at the link.

November 12, 2021 | Permalink

Thursday, November 4, 2021

Rauch on Customized Speech and the First Amendment

Daniel Rauch, Yale University Law School, is publishing Customized Speech and the First Amendment in the Harvard Journal of Law & Technology (2022). Here is the abstract.

Customized Speech — speech targeted or tailored based on knowledge of one’s audience — is pervasive. It permeates our relationships, our culture, and, especially, our politics. Until recently, customization drew relatively little attention. Cambridge Analytica changed that. Since 2016, a consensus has decried Speech Customization as causing political manipulation, disunity, and destabilization. On this account, machine learning, social networks and Big Data make political Customized Speech a threat we constitutionally can, and normatively should, curtail. That view is mistaken. In this Article, I offer the first systematic analysis of Customized Speech and the First Amendment. I reach two provocative results: Doctrinally, the First Amendment robustly protects Speech Customization. And normatively, even amidst Big Data, this protection can help society and democracy. Doctrinally, the use of audience information to customize speech is, itself, core protected speech. Further, audience-information collection, while less protected, may still only be regulated by carefully drawn, content-neutral, generally applicable laws. And unless and until the state affirmatively enacts such laws (as, overwhelmingly, it has not), it may not curtail speakers’ otherwise-lawful use of such information in political Speech Customization. What does this mean for democratic government? Today, Customized Speech raises fears about democratic discourse, hyper-partisan factions, and citizen autonomy. But these are less daunting than the consensus suggests, and are offset by key benefits: modern Customized Speech activates the apathetic, empowers the marginalized, and checks government overreach. Accordingly, many current proposals to restrict such Customized Speech — from disclosure requirements to outright bans — are neither constitutionally viable nor normatively required.

Download the article from SSRN at the link.

November 4, 2021 | Permalink

Wednesday, November 3, 2021

Call For Applications: Yale Information Society Project MFIA Clinical Fellowship Opening @yaleisp

From the Yale Information Society Project:

 

 

The Yale Information Society Project is now accepting applications for a fellowship position with the Media Freedom & Information Access Clinic (MFIA), beginning in July 2022. MFIA is a law student clinic that supports robust investigative journalism, promotes the public’s right of access to information, and protects freedom of expression.

The ideal candidate will have at least two years of relevant litigation experience, including some demonstrated interest in the fields of media law, First Amendment, FOIA, Internet law, administrative law, or intellectual property law.

MFIA seeks candidates for this position with at least two years of relevant experience who are interested in pursuing a career in litigation or public advocacy on issues surrounding digital-age free expression and government transparency. Previous Fellows have gone on to work in-house at media companies and law firm media practices, at non-governmental organizations, or as law school clinical professors.

 

More here.

 

November 3, 2021 | Permalink