Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, June 14, 2021

Francis on Freedom of Thought in the United States: The First Amendment, Marketplaces of Ideas, and the Internet @sjquinney

Leslie P. Francis, University of Utah College of Law, is publishing Freedom of Thought in the United States: The First Amendment, Marketplaces of Ideas, and the Internet in the European Journal of Comparative Law and Governance. Here is the abstract.

Freedom of thought is not directly protected as a right in the United States. Instead, US First Amendment law protects a range of rights that may allow thoughts to be expressed. Freedom of speech has been granted especially robust protection. US courts have extended this protection to a wide range of commercial activities judged to have expressive content. In protecting these rights, US jurisprudence frequently relies on the image of the marketplace of ideas as furthering the search for truth. This commercial image, however, has increasingly detached expressive rights from the understanding of freedom of thought as a critical forum for individual autonomy. Indeed, the commercialization of US free speech doctrine has drawn criticism for “weaponizing” free speech to attack disfavoured economic and regulatory policies and thus potentially affecting freedom of thought adversely. The Internet complicates this picture. This paper argues that the Supreme Court’s expansion of the First Amendment for the benefit of commercial actors lies in the problematic tension with the justification for individual freedom of thought resting in personal self-direction and identity.

Download the article from SSRN at the link.

June 14, 2021 | Permalink

Tuesday, June 8, 2021

Ugland on Hacks, Leaks, and Data Dumps: The Right to Publish Illegally Acquired Information Twenty Years After Bartnicki v. Vopper @ErikUgland

Erik Ugland, Marquette University, is publishing Hacks, Leaks, and Data Dumps: The Right to Publish Illegally Acquired Information Twenty Years After Bartnicki v. Vopper in volume 96 of the Washington Law Review (2021). Here is the abstract.

This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times over his tax records, to the civil suits spawned by the hack of DNC servers—so there is a pressing need for clarity. The empirical part of this Article presents the results of a comprehensive analysis of every case applying Bartnicki over the past two decades to determine if lower courts have answered the questions Bartnicki left open and to identify points of confluence and conflict. The analysis shows courts are divided about nearly every aspect of Bartnicki. There is a circuit split regarding the amount of separation a publisher must have from a source in order to be protected, division about the relevance of statutory prohibitions on receiving or possessing certain information, and confusion about how to assess whether publications, particularly those involving large caches of data, address matters of public concern. The normative part of this Article proposes a reorientation of courts’ approaches to these issues by (1) untethering liability for the procurement, receipt, and publication of information, treating each as a legally discrete act; (2) denying Bartnicki protection only to those who directly participate or assist in the illegal procurement of information; (3) treating as a First Amendment violation any law punishing those who merely receive or possess newsworthy information; and (4) engaging in more contextual analyses of “public concern.” All of these changes will help stabilize the law, strike a better balance between newsgathering and secrecy, and vitalize press and citizen communication at a time of decreasing government and private-sector transparency.

Download the article from SSRN at the link.

June 8, 2021 | Permalink

Monday, June 7, 2021

White House Correspondents' Association Announces New Scholarship at University of Tennessee @whca

The White House Correspondents' Association has announced the Carter Holland Memorial Scholarship at the University of Tennessee. The scholarship honors the late Carter Holland, son of Lucie and Steven Holland. Steven Holland is a well-known journalist who has covered the White House for various media, including CBS News and Reuters. More about the new scholarship here.

June 7, 2021 | Permalink

Friday, June 4, 2021

Fidler on The New Editors: Refining First Amendment Protections for Internet Platforms @mailynfidler

Mailyn Fidler, Harvard University Berkman Klein Center for Internet & Society, is publishing The New Editors: Refining First Amendment Protections for Internet Platforms in the Notre Dame Law School Journal on Emerging Technology (2021). Here is the abstract.

(Forthcoming) This Article envisions what it would look like to tailor First Amendment editorial privilege to the multifaceted nature of the Internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of Internet platforms and functions alters this application at all. First Amendment editorial privilege, as applied to Internet platforms, is often treated by courts and platforms themselves as monolithic and equally applicable to all content moderation decisions. The privilege is asserted by all types of platforms, whether search engine or social media, and for all kinds of choices. But Section 230’s broad protections for Internet platforms have largely precluded the development of a robust body of First Amendment law specific to Internet platforms. With Section 230 reform a clear priority for Congress, Internet platforms will likely turn to First Amendment defenses to a greater extent in coming years, prompting the need to examine how the law of editorial privilege applies online. I offer six concrete conclusions about how online platforms do or do not challenge the application of the law of editorial judgment. The features and functions of online platforms do not change the need to differentiate when a platform is occupying a speaker or non-speaker role, the application of longstanding First Amendment exceptions for low value speech to platforms, and the judiciary’s hesitancy to include market competitiveness in First Amendment analyses. These same features and functions require insisting that no distinction between wholesale and retail-level editorial judgments emerges in the online space, threaten to collapse the useful distinction between editing and advertising, and suggest user decisions should be given greater weight in determining speech-related damages.

Download the article from SSRN at the link.

June 4, 2021 | Permalink

Pogácsás on András Koltay: New Media and Freedom of Expression: Rethinking the Constitutional Foundations of the Public Sphere (Book Review)

Anett Pogácsás, Peter Pazmany Catholic University, has published András Koltay: New Media and Freedom of Expression: Rethinking the Constitutional Foundations of the Public Sphere (Book Review) at 8 Hungarian Yearbook of International Law and European Law 425 (2020). Here is the abstract.

Nothing shows better how much the public sphere has changed that the Index of a book about it has the most references to “Social media platforms”, “Search engines” or “Gatekeepers”. „One might almost say that Google and Facebook gave birth to (the public sphere of) the twenty-first century” – raises the Author, drawing the attention to that online communication has huge impact on our whole life, including public sphere. One can only recommend the new book of András Koltay, because it provides a sure handrail in rapidly changing world of online communication. His explication and commentary about gatekeepers’ relation to content not only gives a line of deeper sight to his readers, but also the hint of optimism: this uncertainty is also a kind of certainty for us, being sure that this is not the first – and even not the last – turning point.

Download the book review from SSRN at the link.

June 4, 2021 | Permalink

Friday, May 28, 2021

Schafer on Whether Houchins Matters @MatthewSchafer

Matthew Schafer, ViacomCBS; Fordham University School of Law, has published Does Houchins Matter? Here is the abstract.

Houchins v. KQED, Inc. is an enigma. The issue presented by the case was whether the press had a special right of access to a prison over that owed to the public. Only seven Justices participated in the case. The lead opinion, a three-Justice plurality, failed to command a majority of even the seven-Justice Court. The case split 3-1-(3), representing both a quantitative and qualitative schism between the factions. The plurality concluded that “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information.” The concurring opinion agreed with the plurality in part and with the dissenters, in part, who would have found that “arbitrarily cutting off the flow of information at its source abridges the freedom of speech and of the press.” But that, as they say, is just the beginning of the story. This story – the story of the existence of a First Amendment right of access – from Houchins on through to the Court’s most recent access cases, is told in Part I. You see, as soon as the Court decided Houchins, it drew it into doubt. One year later, the Court would reserve judgment on the question the Houchins plurality allegedly decided. A year after that, the Court found, contrary to Houchins, that in some instances the First Amendment guarantees access to some government information. That case, Richmond Newspapers, Inc. v. Virginia concerned the right of access to criminal trials. It was split too, but the majority of the eight-Justice Court – 7-(1) – agreed that the First Amendment guaranteed a right of access. And, later, in Globe Newspaper Co. v. Superior Court, a majority of the Court found that the First Amendment was broad enough to be read as encompassing a right of access that “ensure[s] that the individual citizen can effectively participate in and contribute to our republican system of self-government.” This history is difficult to square with the absolutist language in the Houchins plurality. Subsequent Supreme Court cases, however, seemed to suggest Houchins had continuing viability. Thus, as explained in Part II, while many courts of appeals have found that Richmond Newspapers and Globe Newspaper provide the general rule when it comes to access, just as many have concluded that the Houchins plurality – a plurality that never constituted a majority of the Court – establishes the general rule that there is no right of access to government information under the First Amendment at all. In doing so, these courts have downplayed the majority position in Richmond Newspapers and Globe Newspaper as mere exceptions to Houchins’ general rule, applicable only to judicial proceedings and records. As a result, the right of access in circuits following this approach does not extend outside the factual confines of Richmond Newspapers and Globe Newspaper (or their close analogs). Part III asks, despite these cases, Does Houchins Matter? It suggests that the answer to that question should be No. Considering first the facts of the case, while many courts cite Houchins as holding that there is no general right of access protected under the First Amendment, the question in Houchins was a different one, namely, whether the press had a special right of access beyond that established for the public. Moreover, unlike several cases citing Houchins to support the total exclusion of the press and the public, Houchins was a case where substantial access was actually provided. Thus, the opinion in Houchins presupposed some level of access. Second, Houchins precedential weight is questionable for a number of reasons. Not only is there no majority opinion – even on a seven-Justice court, but there is also no controlling opinion. And, it can seriously be questioned whether the absolutist constitutional rule Houchins is often cited for should have been set down by a three-Justice plurality in a short Court. Third, the law subsequent to Houchins, to borrow a phrase, occupies the field of the right of access. This law not only dealt with the complete exclusion of the press, it provided standards to apply when dealing with claimed rights of access, and its holding is irreconcilable with the broad dicta in Houchins. Moreover, those later cases, especially Globe Newspaper, are a better doctrinal fit in the Court’s broader First Amendment cannon than is Houchins. They advance, as the Court put it in New York Times v. Sullivan, the “central meaning of the First Amendment”: “The right of free public discussion of the stewardship of public officials.” Houchins does just the opposite, cutting off information to inform that discussion. The paper finally argues that the practical effect of finding Houchins to be controlling is decidedly anti-democratic. Recent events have shown just how undemocratic the result of uncritical acceptance of Houchins can be. In the summer of 2019, the federal government, for weeks, kept journalists out of detention centers on the border. It did so despite shocking secondhand accounts of overcrowding of immigrants apprehended crossing the border, malnourishment, maltreatment, and the spread of disease among those apprehended. Once a photograph was finally released, outrage followed and public pressure was brought to bear. In 2020, the federal government argued under Houchins that it could exclude journalists from conflicts between Black Lives Matter protesters and federal law enforcement, despite allegations that the federal government was conducting unlawful police activities in localities and, quite literally, beating and carrying away citizens under the cover of dark. Again, the images from these protests were central to public debate about the government’s conduct. This paper then closes by recognizing that, despite all of this, vanquishing Houchins is an uphill battle. It seems unlikely that even though Houchins shouldn’t matter, absent guidance from the Supreme Court, lower courts in a significant number of Circuits around the country will continue to find that it does matter. Courts appear too afraid that recognizing a general First Amendment right of access to government proceedings and information will break down the doors of courthouses and government agencies and prisons around the country. Still, while the right of access as defined in cases like Richmond Newspapers and Globe Newspaper might be more difficult to apply than Houchins, it is the better approach as, unlike Houchins, it allows courts to consider the important interests at stake in any given case as opposed to simply shutting the government’s doors in the face of the public.

Download the article from SSRN at the link.

May 28, 2021 | Permalink

Thursday, May 27, 2021

First Amendment Watch Panel Discussion: Reclaiming the Narrative Video Now Available @FirstAmendWatch @LidskyLidsky @sjquinney @UGASchoolofLaw

From First Amendment Watch: Video of the May 19th FAW panel discussion, Reclaiming the Narrative: Defamation Lawsuits and the 2020 Election, featuring Lyrissa Lidsky, Jonathan Peters, and RonNell Anderson Jones. Link here. 

May 27, 2021 | Permalink

Tuesday, May 25, 2021

Donohue on New Media, Free Expression, and the Offences Against the State Acts @Laura_K_Donohue @GeorgetownLaw @hartpublishing

Laura Donohue, Georgetown University Law Center, has published New Media, Free Expression, and the Offences Against the State Acts in The Offences Against the State Act 1939 at 80: A Model Counter-Terrorism Act? 163 (Mark Coen ed., Oxford: Hart Publishing 2021). Here is the abstract.

New media facilitates communication and creates a common, lived experience. It also carries the potential for great harm on an individual and societal scale. Posting integrates information and emotion, with study after study finding that fear and anger transfer most readily online. Isolation follows, with insular groups forming. The result is an increasing bifurcation of society. Scholars also write about rising levels of depression and suicide that stem from online dependence and replacing analogical experience with digital interaction, as well as escalating levels of anxiety that are rooted in the validation expectation of the ‘like’ function. These changes generate instability and contribute to a volatile social environment. Significant political risks also accompany this novel genre. Hostile actors can use social media platforms to deepen political schisms, to promote certain candidates, and, as demonstrated by the recent Cambridge Analytica debacle, to swing elections. Extremist groups and terrorist organisations can use online interactions to build sympathetic audiences and to recruit adherents. Since 1939, the Offences Against the State Act (OAS) has served as the primary vehicle for confronting political violence and challenges to state authority. How effective is it in light of new media? The challenges are legion. Terrorist recruitment is just the tip of the iceberg. Social networking sites allow for targeted and global fundraising, international direction and control, anonymous power structures, and access to expertise. These platforms create spaces within which extreme ideologies can prosper, targeting individuals likely to be sympathetic to the cause, 24 hours a day, seven days a week, ad infinitum. They offer an alternative reality, subject to factual manipulation and direction—a problem exacerbated by the risk of so-called deep fakes: autonomously-generated content that makes it appear that people acted, or that certain circumstances occurred, which never did. In November 2019 the Irish Government adopted a new regulation targeting social media. The measure focuses on political advertising and to ensure that voters have access to accurate information. It does not address the myriad further risks. This chapter, accordingly, focuses on ways in which the Offences Against the State Act (OAS) and related laws have historically treated free expression as a prelude to understanding how and whether the existing provisions are adequate for challenges from new media.

Download the essay from SSRN at the link.

May 25, 2021 | Permalink

Wednesday, May 19, 2021

Call For Participation: Virtual Colloquium on Race, Racism, and American Media @MiamiLawSchool @UHLAW @LiliLevi_UMLaw @TonyVarona @Dave_Fagundes @aliciacbell @JosephATorres

Via Professor Lili Levi, University of Miami School of Law:


The University of Miami School of Law and University of Houston School of Law are sponsoring a virtual colloquium on race and the media on September 17, 2021. Here is a link to the CFP.


I also reproduce it below.


American media entities continue substantially to underrepresent minority individuals, and the content they produce marginalizes nonwhite voices. Free Press recently released a 100-page essay as part of its Media 2070 project detailing the history of racism pervading American media companies. One striking example of this problem is the lack of racial diversity in media ownership, employment, and content, which pervades newsrooms, radio, and technology companies alike. One consequence of this historic exclusion is that a majority of Black and Latinx Americans now believe that media outlets fail to understand them. And while entities such as the Federal Communications Commission have taken some steps to counter racism in American media, recent adverse legal rulings have hamstrung any such efforts.

In light of these systemic injustices, the media and technology public interest group Free Press recently launched its Media 2070 project, which seeks to examine and remedy the racism embedded in American media since the nation’s founding. Inspired by Media 2070, the University of Houston Law Center and the University of Miami School of Law are hosting a virtual colloquium on race and racism in American media. The event will gather activists, public servants, academics, and other experts together for a series of frank discussions that will lay bare the past and present racism in American media and propose steps that may help ameliorate these inequities.

Panels will cover topics including the history of racism in American media; assessment of historic efforts by (and failures of) the FCC, Congress, state regulators, and others to address such racism; the role of the First Amendment’s Speech Clause and the Fourteenth Amendment’s Equal Protection Clause in assessing and addressing these problems; potential legal and policy approaches that may remedy these injustices, including corporate activism; and how reparations may fit into a remedial approach.

This document represents only a sketch by the planning committee (Deans Len Baynes and Tony Varona, research deans Dave Fagundes and Lili Levi, and Free Press representatives Alicia Bell and Joe Torres). Plans may change pending contributions from participants. 

The co-convenors invite your participation in this colloquium for a limited number of presentation spaces. To apply, please submit a 500-word abstract summarizing your proposed talk. Accepted applicants will also have the opportunity to develop their presentation into either a short online essay in HLRe (the online edition of the Houston Law Review) or a full-length article in the University of Miami Race and Social Justice Law Review. Submit your proposal or any questions about the colloquium to by June 21, 2021.



May 19, 2021 | Permalink

Tuesday, May 18, 2021

Publication Opportunity: All About Cable and Broadband

Rob Frieden, Pioneers Chair and Professor of Telecommunications and Law, Penn State University, tells me that he is looking for someone to replace him as the biannual updater to All About Cable and Broadband, published by Law Journal Press. You can get more information about this important publication from Professor Frieden directly via email at Professor Frieden notes that one of the valuable benefits in writing the updates to this publication lies in maintaining one's own expertise in developments at the FCC, Congress, state governments, and the courts.



May 18, 2021 | Permalink

Monday, May 17, 2021

Angelo on The Real Cost of Fake News: Smartmatic's $2.7 Billion Defamation Lawsuit Against Fox News

Michael Conklin, Angelo State University, has published The Real Cost of Fake News: Smartmatic’s $2.7 Billion Defamation Lawsuit Against Fox News. Here is the abstract.

On February 4, 2021, voting machine company Smartmatic filed a defamation lawsuit against Rudolph Giuliani, Sidney Powell, Fox News, and Fox News personalities Lou Dobbs, Maria Bartiromo, and Jeanine Pirro. The complaint seeks $2.7 billion in compensatory damages, punitive damages, and attorney’s fees. The 285-page complaint alleges the damages were incurred from the defendants’ false claims that Smartmatic was actively involved in rigging the 2020 U.S. presidential election in favor of Joe Biden. This is similar to the defamation lawsuit filed by Dominion Voting Systems, Inc., (Dominion) against Sidney Powell on January 8, 2021. Part II of this Article addresses the complaint generally. Part III considers the allegation that the defendants actively colluded together. Part IV analyzes the case against Giuliani and Powell, including false statements, intent, their failed election fraud lawsuits, actual malice, and potential immunity as attorneys for Donald Trump. Part V considers the case against Fox News, including issues of potential motivations, what was known when, ambiguities in coverage, and the accessibility of accurate information. Part VI considers Smartmatic’s various damages claims, including the ability to sue on behalf of employees and receive compensation for future, reputational harm. Part VII compares the present lawsuit to the earlier Dominion lawsuit against Sidney Powell. Part VIII uses the plaintiffs’ attorney’s former “pink slime” defamation lawsuit as a comparison. Part IX concludes by predicting the trial outcome and ramifications this case may have on the political process and defamation precedent. The outcome of the Smartmatic lawsuit could have significant consequences not just for the defendants but also for the political landscape. For example, the discovery process has the potential to uncover damaging communications implicating high-profile players. There is even evidence to suggest that future litigation could include former President Trump. The Smartmatic lawsuit could also have a long-term effect on defamation case law if it reaches the Supreme Court. The Court could use it as an opportunity to revisit Sullivan, as recently advocated for by Justice Thomas.
Download the article from SSRN at the link.

May 17, 2021 | Permalink

Friday, May 14, 2021

Enrique Armijo on the Recent FB Oversight Board Ruling @e_armijo @BLaw

Enrique Armijo, a professor of law at Elon University, discusses the Facebook Oversight Board's recent decision concerning FB's suspension of Donald Trump's account. He writes in part,


Critics on the Right who are protesting as unconstitutional the oversight board’s decision to continue letting Facebook ban Trump should either know better, or are relying on the fact that their constituents don’t. Facebook is a private company, and the First Amendment, which applies only to the government, has nothing to say about how or whether it can remove a user’s post or account. But commenters on the Left and Right have have expressed concern over what they view as Facebook’s unchecked power to ban users or take down posts generally, and world leaders like Trump more specifically. Indeed, the oversight board itself was a response to these concerns; as Mark Zuckerberg said in 2019, the goal of the board was to relieve Facebook from “making so many decisions about speech on [its] own.” So those who expressed concerns about the scope of that power should meaningfully engage with the board’s decision. If they do, they will find much to feel good about.

Read his entire essay here at Bloomberg Law's Privacy & Security Law blog.

May 14, 2021 | Permalink

Thursday, May 13, 2021

Judge and Korhani on A Moderate Proposal for a Digital Right of Reply for Election-Related Digital Replicas

Elizabeth F. Judge and Amir M. Korhani, both of the University of Ottawa, Common Law Section, have published A Moderate Proposal for a Digital Right of Reply for Election-Related Digital Replicas: Deepfakes, Disinformation, and Elections in Cyber-Threats to Canadian Democracy (Holly Ann Garnett and Michael Pal, 2021). Here is the abstract.

Electoral cybersecurity harm pertains to the use — or misuse — of information to sway the vote, sow confusion among the electorate, or affect the electorate’s confidence in the integrity of the election. Digital replicas, denoting content generated by or manipulated by digital technologies (such as deep-fakes, virtual reality, or augmented reality) that is capable of producing convincing but simulated audio-visual content of human likenesses, are emerging as a powerful set of disinformation tools that can cause cybersecurity harms to elections. Although the dissemination of disinformation has been an electoral concern historically, that concern has been exacerbated recently by this technologically facilitated ability to produce highly convincing audio-visual online disinformation, including simulated images of politicians, and to circulate the disinformation through online platforms to maximize its viral effects. Beyond the possible harms that can result from digital replicas against politicians in their personal capacity (for example, reputational harm or breach of privacy), the consequences of disinformation tactics employing digital replicas raise wider public harms, as digital replicas can deceive voters and pose a cybersecurity threat to elections and democratic processes. The harms of this form of disinformation are exacerbated in the election context, where democratic processes are implicated, and the risks may be amplified as the number of days before the final day of voting decreases. Yet, digital replicas pose a difficult problem for regulators: how to be comprehensive enough to mitigate the harmful effects of disinformation on voters’ access to information, yet avoid undue censorship or over-regulation that could stifle political communication and voters’ participation in democratic processes. The paper examines the various types of digital replicas that can distort the online political discourse and explains the cybersecurity implications. We canvass salient legal measures in election laws as well as laws pertaining to expression, including intellectual property, privacy, and defamation, that could apply to regulate election-related digital replicas. We then turn to self-regulatory mechanisms of content moderation practices by digital platforms, which range from policies that favor strong protections for political speech to policies that favor removing content that could be electoral disinformation. We explain why these hard law and self-regulatory systems insufficiently redress the elections-based harms arising from digital replicas, and we propose a digital right of reply to fill this gap. We provide a brief legal history of the international right of reply, which was formulated to address wartime propaganda, and which, we argue, provides a salient analogy for electoral disinformation. In our recommendations, we set forth a moderate proposal for a digital version of the “right to reply” to regulate digital replicas during the election period, including details for practical implementation and enforcement strategies. While the chapter focuses on Canada, we conclude with general lessons that may be applicable to other jurisdictions facing similar problems arising from digital replicas in the elections context, drawing on general principles for the regulation of technology and disinformation.

Download the article from SSRN at the link.

May 13, 2021 | Permalink

Friday, May 7, 2021

FCC Will Accept Applications For NCE FM New Stations Beginning November 2, 2021

The Media Bureau has announced that it will receive applications for new station construction permits for noncommercial educational FM stations, beginning November 2, 2021, at 12:01 AM, and ending November 9, 2021, at 6:00 PM. More information available here. 

May 7, 2021 | Permalink

Thursday, May 6, 2021

Gomulkiewicz on The Supreme Court's Chief Justice of IP Law @NevLawJournal

Robert W. Gomulkiewicz, University of Washington School of Law, is publishing The Supreme Court's Chief Justice of Intellectual Property Law in volume 22 of the Nevada Law Journal. Here is the abstract.

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions which call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as one of the most prolific authors of patent law opinions in the history of the Supreme Court. Thus, at a time when intellectual property has become one of America’s most important assets, Justice Thomas has played an important role in the evolution of America’s innovation law and policy. This article is the first to highlight the significance of Justice Thomas’s intellectual property jurisprudence. It considers how Justice Thomas emerged as the Roberts Court’s “chief justice” of intellectual property law, authoring more majority opinions than even colleagues known for their intellectual property law prowess. The article analyzes Justice Thomas’s key intellectual property opinions to understand their importance. It also highlights the distinguishing features of these opinions, including their faithful adherence to textualism, appreciation for the role of remedies, attention to technological and business context, awareness of the impact on intellectual property practitioners, and surprising unanimity. The article concludes that Justice Thomas’s deep respect for the constitutional separation of powers is at the heart of his intellectual property jurisprudence, as his opinions invite and sometimes nudge Congress to play its leading role in crafting intellectual property law.

Download the article from SSRN at the link.

May 6, 2021 | Permalink

Vacca and Bartow on Ruth Bader Ginsburg's Copyright Jurisprudence @RyanVacca @profabartow

Ryan G. Vacca, University of New Hampshire School of Law, and Ann Bartow, Franklin Pierce Center for IP at UNH Law, are published Ruth Bader Ginsburg’s Copyright Jurisprudence in volume 22 of the Nevada Law Journal (2022). Here is the abstract.

When Justice Ruth Bader Ginsburg died on September 18, 2020, the world lost a trailblazer for gender equality, a pop culture icon, a feisty liberal luminary who fought on behalf of the disenfranchised in the areas of civil rights and social justice, and an inspiration to millions of people. She will long be remembered for the social changes she helped effectuate as an advocate, scholar, and jurist. Her amazing civil rights legacy overshadows other areas where Justice Ginsburg’s contributions have been substantial. This article discusses one of the most interesting: copyright law. During her time as a jurist on the Supreme Court and D.C. Circuit, she authored sixteen opinions in copyright cases and joined her colleagues’ opinions in eleven others. But unlike her gender equality and social justice opinions, in which she predictably sided with rock-slinging Davids, Justice Ginsburg tended to favor Goliath content owners in copyright cases. This article offers possible explanations for why this was so, by holistically evaluating Justice Ginsburg’s copyright writings. It identifies several themes running through her copyright opinions: incrementalism, intergovernmental deference, a preference for alternative mechanisms for relief, and stoicism, and juxtaposes her copyright jurisprudence with her approaches to gender equality and reproductive rights.

Download the article from SSRN at the link.

May 6, 2021 | Permalink

Wednesday, May 5, 2021

Horder on Online Free Speech and the Suppression of False Political Claims

Jeremy Horder, London School of Economics, Department of Law, is publishing Online Free Speech and the Suppression of False Political Claims in the 2021 volume of the ILSA Journal of International and Comparative Law. Here is the abstract.

This article will consider the approach taken in different jurisdictions to the use of restrictions, including criminal law prohibitions, to prevent, deter or suppress the making of false political claims online, especially (but not solely) during election periods. The article will explain, first, how a commitment to freedom of expression ought to make state measures to deter the dissemination online of what the author calls false political “viewpoint” information seem problematic. Secondly, the article will show how a number of jurisdictions, including some liberal democracies, have wrongly been drawn into an authoritarian response to the spread of such false information: a response that tries to set the terms on which people come to give and form political viewpoints. Coercion may legitimately be employed (i) to secure due process at the polls, when this is threatened by the dissemination of what the author calls false “participation” information, and to a limited extent (ii) to support transparency about authorship; but coercion should not be used to deter the propagation of political viewpoint content, simply on the grounds of its falsity.

Download the article from SSRN at the link.

May 5, 2021 | Permalink

Sunday, May 2, 2021

Chauvin on Anthony Leaker's Against Free Speech: Shadowboxing with Free Speech Principles (Book Review) @SCLawReview

Noah Chauvin is publishing Anthony Leaker's Against Free Speech: Shadowboxing with Free Speech Principles in the South Carolina Law Review. Here is the abstract.

This essay is a review of Anthony Leaker’s book "Against Free Speech." In his book, Professor Leaker argues that free speech, both in theory and in practice, serves the ends of the powerful and represses the marginalized. As such, Professor Leaker believes we should not only reject free speech, but actively censor reactionary ideas. I did not like Professor Leaker’s book, not because his arguments are wrong—though they are—but because he did a poor job of making them. In my review essay, I explain why I think Professor Leaker’s arguments were poorly made, and discuss why such a book merits a review at all.

Download the essay from SSRN at the link.

May 2, 2021 | Permalink

Saturday, May 1, 2021

Livingstone on Equal Treatment and the Free Speech Clause @Yale

Spencer G. Livingstone, Yale University, has published Equal Treatment and the Free Speech Clause. Here is the abstract.

The traditional Free Speech Clause burden is a law that directly impedes speech interests and that courts can remedy through invalidation. This model is simple in theory and remedy, but it accounts for surprisingly few cases. Instead, a substantial – and growing – number of cases involve what this Article calls “layered speech regulations”: laws that first impede speech broadly (layer 1), and then exempt some speech or speakers (layer 2). As the Court recently made clear in Barr v. AAPC, challenges to layer 2 attract scrutiny under the Free Speech Clause just like challenges to layer 1. In its analysis, however, the Court has brushed over the fact that such layered speech regulations allow rather than restrict speech with their layer 2 provisions. As a result, layer 2 challenges create a Free Speech Clause paradox, as invalidating the law does not allow the challenger to speak, while leaving it in place authorizes censorship through artful drafting. This Article resolves the paradox of layer 2 challenges by showing that such challenges rely on a mandate of equal treatment within the Free Speech Clause, and links that mandate to broader issues that plague freedom of speech law. After demonstrating the Court’s reliance on the equal treatment mandate, the Article provides two doctrinal grounds for the mandate: one concerned with coercion, and one concerned with how the Equal Protection Clause changed the shape of First Amendment protections. With the speech right in layer 2 cases triggered by unequal treatment, the remedy is equal treatment – striking layer 2 to vindicate the speech right and using legislative intent to determine if layer 1 can be severed. This approach resolves the Free Speech Clause and the Article III problems created by layer 2 challenges. It also has substantial implications for the Free Speech Clause more broadly. Specifically, it demonstrates how much room remains to legislatures to correct unequal treatment, including through redistributive regulation beneficial in today’s environment of digital speech, contrary to the common trend of comparing the Free Speech Clause to Lochner. Finally, it reveals the doctrinal changes required to bring the prohibition against content-based regulations in line with the Free Speech Clause’s equal treatment mandate.

Download the article from SSRN at the link.

May 1, 2021 | Permalink

Tuesday, April 27, 2021

Panezi on A Public Service Role For Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform and the Emergency Electronic Access to Library Material @PaneziArgyri

Argyri Panezi, IE Law School; Stanford PACS Center, Digital Civil Society Lab, is publishing A Public Service Role For Digital Libraries: The Unequal Battle Against (Online) Misinformation Through Copyright Law Reform And The Emergency Electronic Access To Library Material in volume 31 of the CORNELL J.L. & PUB. POL'Y (2021). Here is the abstract.

This article analyzes the role of copyright doctrine and case law in preserving the institutional function of libraries—both on- and offline—as trusted and, in principle, neutral hubs equalizing access to credible information and knowledge in societies with structural inequalities. In doing so it examines the ongoing Hachette v. Internet Archive litigation before the US District Court of the Southern District of New York in the context of earlier copyright cases, finding that there is a persistent need for electronic access to library material online. Libraries have traditionally served an important role as reserved spaces for legally permissible distribution of books outside of markets. Copyright law, however, has the potential to hinder the fuction of libraries and other cultural heritage institutions particularly in equalizing access to knowledge. While there exist some exceptions and limitations that partially alleviate this, their applicability in the digital environment is still contested. Two novel challenges are interfering: first, an unmet and contentious need for emergency access to electronic library material to be granted online, and second, the need to counteract historical biases and misinformation, both of which multiply when spread within a hyper-connected and digitized society. In order to ensure electronic access to credible information and knowledge, policymakers must address these challenges strategically and reassess the needs of subjects and institutions that are currently subject to copyright exceptions. Hachette v. Internet Archive follows a string of copyright cases that involved challenges to digitization without permission and to providing electronic access to digitized library material. The plaintiffs in Hachette v. Internet Archive, four publishers, brought copyright claims against the Internet Archive for the latter’s operation of a “National Emergency Library” within the context of the COVID-19 pandemic. The case introduces a new dimension to existing debates around electronic access to library material, particularly around e-lending, raising the question: Can emergencies justify additional exceptions to copyright laws covering electronic access to library material, and if so, under what circumstances? After analyzing the relevant settled case law and the ongoing litigation against the Internet Archive and then looking back into the history of and rationale for copyright laws, the article advances a normative claim—that copyright should provide better support to libraries and digital libraries in particular (broadly defined) as the institutional safeguards of our literary treasures. Libraries have a public service mandate to preserve, curate, and provide access to a plurality of original and authoritative sources, and thus ultimately aspire not to compete in the marketplace but to become trusted hubs that equalize access to knowledge. In the context of a society currently struggling to fight historical biases and (online) misinformation, providing libraries with the legal support needed to fulfill this mandate will enable them to more effectively safeguard and provide equal access to (at least relatively) credible information and knowledge, including in the digital environment.

Download the article from SSRN at the link.

April 27, 2021 | Permalink