Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, August 6, 2020

Alan Dershowitz Says Recent "The Good Fight" Episode Defamed Him

Ron Charles discusses defamation by fiction and Alan Dershowitz's allegation that a fictional lawyer on the tv series The Good Fight defamed him in a recent Jeffrey Epstein-themed episode, "The Gang Discovers Who Killed Jeffrey Epstein." Read Mr. Charles's essay in the Washington Post.

Here's more from Entertainment Weekly.

Here's a short bibliography on defamation by fiction.

Libel in fiction, from the Freedom Forum Institute

Michael Savare, Falsity, Fault, and Fiction, UCLA Law Review 

Vivian Deborah Wilson, The Law of Libel and the Art of Fiction, Law and Contemporary Problems

August 6, 2020 | Permalink

Wednesday, August 5, 2020

Crews on The Case Against Social Media Content Regulation@wayne_crews

Clyde Crews, Jr., Competitive Enterprise Institute, has published The Case against Social Media Content Regulation: Reaffirming Congress’ Duty to Protect Online Bias, 'Harmful Content,' and Dissident Speech from the Administrative State as CEI, Issue Analysis 2020, no. 4. Here is the abstract.

As repeatedly noted by most defenders of free speech, expressing popular opinions never needs protection. Rather, it is the commitment to protecting dissident expression that is the mark of an open society. On the other hand, no one has the right to force people to agree with one’s ideas, much less transmit them. However the flouting of these principles is now commonplace across the political spectrum. Government regulation of media content has recently gained currency among politicians and pundits of both left and right. In March 2019, for example, President Trump issued an executive order directing that colleges receiving federal research or education grants promote free inquiry. And in May 2020 he issued another addressing alleged censorship and bias by allegedly monopolistic social media companies. In this political environment, policy makers, pressure groups, and even some technology sector leaders — whose enterprises have benefited greatly from free expression — are pursuing the idea of online content and speech standards, along with other policies that, if compulsory, would seriously burden their emerging competitors. The current social media debate centers around competing interventionist agendas. Conservatives want social media titans regulated to remain "neutral," while liberals tend to want them to eradicate harmful content and address other alleged societal ills. Meanwhile, some maintain that Internet service should be regulated as a public utility. Blocking or compelling speech in reaction to governmental pressure would not only violate the Constitution’s First Amendment — it would require immense expansion of constitutionally dubious administrative agencies. These agencies would either enforce government-affirmed social media and service provider de-platforming — the denial to certain speakers of the means to communicate their ideas to the public — or coerce platforms into carrying any message by actively policing that practice. When it comes to protecting free speech, the brouhaha over social media power and bias boils down to one thing: The Internet — and any future communications platforms — needs protection from both the bans on speech sought by the left and the forced conservative ride-along speech sought by the right. In the social media debate, the problem is not that big tech’s power is unchecked. Rather, the problem is that social media regulation — by either the left or right — would make it that way. Like the banks, social media giants are not too big to fail, but close regulation would make them that way. American values strongly favor a marketplace of ideas where debate and civil controversy can thrive. Therefore, the creation of new regulatory oversight bodies and filing requirements to exile politically disfavored opinions on the one hand, and efforts to force the inclusion of conservative content on the other, should both be rejected. Much of the Internet’s spectacular growth can be attributed to the immunity from liability for user-generated content afforded to social media platforms — and other Internet-enabled services such as discussion boards, review and auction sites, and commentary sections — by Section 230 of the 1996 Communications Decency Act. Host take-down or retention of undesirable or controversial content by “interactive computer services,” in the Act’s words, can be contentious, biased, or mistaken. But Section 230 does not require neutrality in the treatment of user-generated content in exchange for immunity. In fact, Sec. 230 explicitly protects non-neutrality, albeit exercised in “good faith.” Section 230’s broad liability protection represented an acceleration of a decades-long trend in courts narrowing liability for publishers, republishers, and distributors. It is the case that changes have been made to Section 230, such as with respect to sex trafficking, but deeper, riskier change is in the air today, advocated for by both Republicans and Democrats. It is possible that some content removals may happen in bad faith, or that companies violate their own terms of service, but addressing those on a case-by-case basis would be a more fruitful approach. Section 230 notwithstanding, laws addressing misrepresentation or deceptive business practices already impose legal discipline on companies. Regime-changing regulation of dominant tech firms — whether via imposing online sales taxes, privacy mandates, or speech codes — is likely not to discipline them, but to make them stronger and more impervious to displacement by emerging competitors. The vast energy expended on accusing purveyors of information, either on mainstream or social media, of bias or of inadequate removal of harmful content should be redirected toward the development of tools that empower users to better customize the content they choose to access. Existing social media firms want rules they can live with — which translates into rules that future social networks cannot live with. Government cannot create new competitors, but it can prevent their emergence by imposing barriers to market entry. At risk in the regulatory fervor, too, is the right of political — as opposed to commercial — anonymity online. Government has a duty to protect dissent, not regulate it, but a casualty of regulation would appear to be future dissident platforms. The Section 230 special immunity must remain intact for others beyond today's slate of big tech players, lest Congress turn social media’s economic power into genuine coercive political power. Competing biases are preferable to pretended objectivity. Given that reality, Congress should acknowledge the inevitable presence of bias, protect competition in speech, and defend the conditions that would allow future platforms and protocols to emerge in service of the public. The priority is not that Facebook or Google or any other platform should remain politically neutral, but that citizens remain free to choose alternatives that might emerge and grow with the same Section 230 exemptions from which the modern online giants have long benefited. Policy makers must avoid creating an environment in which Internet giants benefit from protective regulation that prevents the emergence of new competitors in the decentralized infrastructure of the marketplace of ideas.

Download the article from SSRN at the link.

August 5, 2020 | Permalink

Friday, July 31, 2020

Baade on Not Calling a Spade a Shovel: Crucial Subtleties in the Definition of Fake News and Disinformation @B_Baade @FU_Berlin

Björnstjern Baade, Freie Universität Berlin, has published Don’t Call a Spade a Shovel: Crucial Subtleties in the Definition of Fake News and Disinformation, published on Verfassungsblog, April 14, 2020. Here is the abstract.

There is considerable agreement that false as well as distorted (or misleading) statements can be 'fake news' or 'disinformation'. What is lacking, to my mind, is an awareness that the difference between these two varieties is critical. European human rights law requires the distinction between false and distorted statements. False statements may, in principle, be regulated, also in a repressive manner; distorted statements generally may not. Non-legal efforts to counter fake news or disinformation, e.g. fact-checking, are likewise harmed by disregarding the difference between false and distorted statements.

Download the essay from SSRN at the link.

July 31, 2020 | Permalink

Dahl on Intellectual Property: Ownership and Protection in a University Setting @PennLaw

Cynthia Dahl, University of Pennsylvania Law School, is publishing Intellectual Property: Ownership and Protection in a University Setting in In Academic Entrepreneurship for Medical and Health Scientists (Nalaka Gooneratne, Rachel McGarrigle & Flaura Winston eds., 2019).

Before an academic entrepreneur may protect or commercialize an invention, they must understand if they own the rights to it. This short chapter helps the inventor to consider the various scenarios that occur in a university setting. It advises the inventor how to seek a waiver from the university if they believe they are the true owner of the invention. If the facts indicate that the invention should be owned by the university, the chapter also discusses how a university decides to formally protect the invention through patent or copyright. Finally, the chapter advises the inventor how to stay involved in the patenting process, even if the university is the official owner of the rights, in order to build strong protection over the invention against any later infringement.

Download the essay from SSRN at the link.

July 31, 2020 | Permalink

Wednesday, July 29, 2020

Belavusau on The Rise of Memory Laws in Poland: An Adequate Tool to Counter Historical Disinformation? @Ulad_Belavusau

Uladzislau Belavusau, T. M. C. Asser Institute, University of Amsterdam; University of California, Berkeley, Berkeley Center on Comparative Equality & Anti-Discrimination Law, has published The Rise of Memory Laws in Poland: An Adequate Tool to Counter Historical Disinformation? at 29 Security and Human Rights 36 (2019). Here is the abstract.

This article focuses on the growing body of Polish memory laws, including the 2016 ‘Street De-Communization’ Law and the 2018 Law on historical expression that introduced changes to the Act of the Polish Institute of National Remembrance. The analysis zooms in on, in particular, the often-overlooked component of the 2018 Law that requires the investigation of historical crimes of ‘Ukrainian nationalists’, as well as the wider context of ‘memory wars’ through memory laws in Central and Eastern Europe. The examination concludes that there is a discrepancy between the rationale to adopt this legislation in Poland, namely to counteract historical disinformation, and the legal solutions contained in the 2018 Law.

Download the article from SSRN at the link.

July 29, 2020 | Permalink

Kende on Social Media, the First Amendment, and Democratic Dysfunction in the Trump Era @DrakeLawSchool

Mark Kende, Drake University Law School, has published Social Media, the First Amendment, and Democratic Dysfunction in the Trump Era at 68 Drake Law Review 273 (2020). Here is the abstract.

In the fall of 2019, the congressionally endowed Drake Constitutional Law Center held a symposium on the book, Democracy and Dysfunction, authored by University of Texas law professor Sandy Levinson and Yale law professor Jack Balkin. Several scholars offered commentary on the book. This Article focuses on how the Internet is not what it used to be. The Internet is now a major reason why the U.S. political system has broken down. While several other books have made this argument at length, this Article synthesizes these viewpoints in a concise and useful manner. In 1997, the U.S. Supreme Court treated Internet 1.0 as a sacrosanct technology. The Internet has changed dramatically since then with Facebook, Google, and Amazon becoming among the world’s most dominant companies and social media platforms taking charge. Yet the Court has still provided these companies with the utmost protection. Unfortunately, Internet 2.0 contains encrypted websites allowing dangerous collaborations, salacious materials, a Dark Web, and even postings designed to sabotage elections. It is no accident that the Russians succeeded at influencing the 2016 U.S. presidential election. People’s privacy is also being invaded. And President Donald Trump tweets messages with racist, sexist, and otherwise inflammatory elements on social media. This Article shows how the poisonous social media mentioned above and the absence of useful restrictions have caused political dysfunction. The Article also shows how several often-praised First Amendment cases have contributed to these problems, as have the imprecise and detrimental algorithms employed by these companies. Moreover, the Article asserts that the provisions of 42 U.S.C. § 230 could be used by these private entities to support cleansing efforts that are necessary and thereby avoid government controls.

Download the article from SSRN at the link.

July 29, 2020 | Permalink

Thursday, July 23, 2020

Judge Deems BOP Decision To Return Michael Cohen To Prison "Retaliatory," Orders Him Released To Home Confinement

Judge Alvin Hellerstein has ordered former Trump lawyer Michael Cohen released from prison, ruling that the Bureau of Prisons decision to return Mr. Cohen to detention was "retaliatory" because he plans to release a book about Mr. Trump. Mr. Cohen had refused to sign an agreement in which he agreed not to publish the book in order to continue his sentence at home. Said the judge, "“I’ve never seen such a clause, in 21 years in being a judge and sentencing people." He continued, "How can I take any other inference but that it was retaliatory?" Mr. Cohen will serve the rest of his term in home confinement. More here from CNBC. 

July 23, 2020 | Permalink

Wednesday, July 22, 2020

Applications Open For UVA Legal Fellowship, First Amendment Clinic, University of Virginia School of Law

The First Amendment Clinic at the University of Virginia School of Law, in partnership with the Reporters Committee, is hiring a legal fellow for the 2020-2021 and 2021-2022 academic years. The expected start date is August 17, 2020. This is a full-time position based in Charlottesville, VA, for a two-year term (though exceptional candidates who are only available for the 2020-2021 academic year will be considered).

More information about the posting is available here: https://www.rcfp.org/work-at-rcfp/#UVA.

July 22, 2020 | Permalink

Tuesday, July 21, 2020

Angelo on Krotoszynski's The Disappearing First Amendment

Michael Conklin, Angelo State University, is publishing Disappearing Act: Are Free Speech Rights Decreasing? in the St. Mary's Law Journal for 2020. Here is the abstract.

This is a critical analysis of Ronald J. Krotoszynski, Jr.’s new book, The Disappearing First Amendment. Krotoszynski provides a counter narrative to the claim that modern free speech rights have been on an upward trajectory. Examples provided to support this claim range from valid (e.g., the public forum doctrine reducing access to government property for speech activity) to misguided (e.g., decreased academic freedom). Overall the book is a worthwhile endeavor because the areas of decreasing free speech rights — such as reduced access to government property for speech activity — receive less media attention than areas of increased free speech such as those in Janus and Citizens United.

Download the article from SSRN at the link.

July 21, 2020 | Permalink

Wednesday, July 15, 2020

Yadav on Media and Sex Workers: Need For Reforming the Approach

Vikrant Yadav, Government Law College, Mumbai, is publishing Media and Sex Workers: Need for Reforming the Approach in volume 9 of the International Journal of Multidisciplinary Educational Research (2020). Here is the abstract.

Sex industry is said to be the oldest profession of mankind. Being so, it has been focal point in many films, television media, and in recent times the web media. However, the negative depiction of sex workers by film and television media and lack of investigative reporting by news media, has led to social unacceptability of sex workers. This research article is an attempt to critically analyse the role of media in covering sex industry and suggest changes in approach of media to highlight issues of sex workers.

Download the paper from SSRN at the link.

July 15, 2020 | Permalink

Tuesday, July 14, 2020

Zick on The First Amendment In the Trump Era @WMLawSchool

Timothy Zick, William & Mary Law School, has published The First Amendment in the Trump Era. Here is the abstract.

This is a draft of the Introduction to my book, The First Amendment in the Trump Era (Oxford University Press, 2019). The Introduction describes the unique characteristics of the Trump era as they concern free speech and press, previews various First Amendment conflicts during the Trump era, and provides chapter summaries.

Download the Introduction from SSRN at the link.

July 14, 2020 | Permalink

Monday, July 13, 2020

Smith on Political Fair Use @CathaySmith

Cathay Smith, University of Montana School of Law, is publishing Political Fair Use in volume 62 of the William & Mary Law Review (2020). Here is the abstract.

During election season, politicians and political campaigns often use pop culture or iconic works, such as viral memes or popular songs, to help convey their political messages — often without authorization from the copyright owners of these works. As politics and politicians become ever more divisive, these unauthorized political uses of copyrighted works can be particularly objectionable to copyright owners. In addition to offending their political or moral inclinations, artists and copyright owners frequently claim that these political uses infringe their copyrights. Politicians and campaigns argue that their right to use copyrighted works for political purposes is protected by the First Amendment, and that such political uses are presumptively fair use. This Article examines unauthorized political uses of copyrighted works under copyright law’s fair use doctrine to demonstrate that, in fact, both sides are correct. Through a series of case studies, this Article identifies a pattern in political fair use decisions: In disputes arising from the unauthorized political uses of copyrighted works, courts appear to implicitly modify their analyses and balancing of the fair use factors under Section 107 of the Copyright Act in order to both accommodate the import of political speech and to respect copyright owners’ dignity and rights to control use of their expressive works. Under the courts’ political fair use analysis, one determination — the nature of the original copyrighted work — seems to exert an outsized influence on the determination of all four fair use factors, permitting certain unauthorized political uses of copyrighted works to appear presumptively fair. This contradicts the Supreme Court’s guidance to courts on not subjecting copyright to independent First Amendment review nor to expand copyright’s fair use doctrine in infringement cases involving political or public figures. It also disregards certain copyright owners’ right to control use of their work, but permits other copyright owners the right to curtail infringing behavior that causes no market harm. This Article highlights these concerns and explores the normative implications of political fair use on litigation certainty and predictability, incentives to create political expressive works, and the balance between respecting creators’ dignity and rights to control use of their expressive works with guaranteeing free and open discussion of politicians and political candidates.

Download the article from SSRN at the link.

July 13, 2020 | Permalink

Friday, July 10, 2020

Michael Cohen Sent Back To Prison Over Refusal To Agree Not To Speak To Press Without Approval

The New York Times reports that federal law enforcement returned Michael Cohen to prison after he refused to agree not to publish a book or to speak to the press without prior approval from the Bureau of Prisons while serving his sentence. He objected because he said these conditions violated his right to free speech. Mr. Cohen had been released in May to serve the rest of his term in home confinement due to the pandemic. More here. 

July 10, 2020 | Permalink

Sunday, July 5, 2020

ABA Forum on Communications Law Seeking Participants For Annual Moot Court Competition

The ABA's Forum on Communications Law is seeking your help in recruiting talented law students to compete in the Forum's annual moot court competition, which is designed to provide a career advancement opportunity for students from communities traditionally underrepresented in our field. 

Entrants will brief and argue a hypothetical case drawn from contemporary media-law issues (this past year's was the retaliatory revocation of an investigative television reporter's media credentials). Students are welcome to enter as two-person teams or as individuals, who will be matched with other individual entrants. 

The final four competitors get to argue before a panel of distinguished sitting judges drawn from federal and state appellate courts around the country, and there are cash prizes for the best brief and best oral advocacy.

The competition usually takes place at the Forum's annual conference at the end of January, but will almost certainly be "virtual" this year, which should make it easier for students who might hesitate to take off instructional days during the semester. 

Entering requires completing a form by Aug. 7, which you can find at this link, along with more detailed instructions:

https://www.americanbar.org/groups/communications_law/initiatives_awards/moot_court_competition/

July 5, 2020 | Permalink

Friday, June 26, 2020

Tilley on (Re)Categorizing Defamation @CristinaTilley

Cristina Tilley, University of Iowa College of Law, is publishing (Re)Categorizing Defamation in volume 94 of the Tulane Law Review (2020). Here is the abstract.

This Article makes a tort-based argument for reassessing modern defamation law. It opens by considering the role that defendant agency plays in the search for wrongfulness throughout the intentional torts, negligence, and strict liability. While a defendant’s control over his behavior is a crucial precondition for intentional tort or negligence liability, the piece suggests that it is the knowing and purposeful forfeiture of control over risk-insensitive instrumentalities that justifies the assignment of liability on a strict basis for select undertakings. Building on this insight, the piece suggests that the original media defamation defendants, job printers, were subject to strict liability because they duplicated for mass consumption, by remote readers, words whose capacity to harm they could not control. However, as the media evolved throughout the nineteenth and early twentieth centuries, publishers exercised increasingly greater control over the words they distributed and the audiences who would read them. Consequently, when the Supreme Court decided in 1964 to treat tort law as an instrument of speech policy, publisher control made it convenient and theoretically attractive to incentivize bold coverage of government and society by shifting away from strict liability and requiring plaintiffs to prove some media fault. Ironically, almost immediately after the Court shifted the basis for holding media defendants liable for defamation, publisher control over financial decisions, distribution technology, and content generation began to recede. Most notably, the modern media increasingly uses algorithms to produce news stories that are posted directly to the Internet with no human oversight. In other words, the theoretical justification for the Court’s modern fault requirement no longer exists. Moreover, the instrumental self-governance benefits of the modern fault requirement that the Court envisioned have not come to fruition. In fact, absent the quasi-warranty function performed by a strict rule that assigned liability for even inadvertent errors, and the introduction of a regime that excuses errors not arising from intent or negligence, consumers no longer equate “news” with “truth.” This disconnect has arguably contributed to public despair about the possibility of self-educating and self-governing by consuming news. The piece concludes by asking whether, for both theoretical and instrumental reasons, it is worth reconsidering a default rule of strict liability for the defamation tort.

Download the article from SSRN at the link.

June 26, 2020 | Permalink

Tilley on (Re)Categorizing Defamation @CristinaTilley

Cristina Tilley, University of Iowa College of Law, is publishing (Re)Categorizing Defamation in volume 94 of the Tulane Law Review (2020). Here is the abstract.

This Article makes a tort-based argument for reassessing modern defamation law. It opens by considering the role that defendant agency plays in the search for wrongfulness throughout the intentional torts, negligence, and strict liability. While a defendant’s control over his behavior is a crucial precondition for intentional tort or negligence liability, the piece suggests that it is the knowing and purposeful forfeiture of control over risk-insensitive instrumentalities that justifies the assignment of liability on a strict basis for select undertakings. Building on this insight, the piece suggests that the original media defamation defendants, job printers, were subject to strict liability because they duplicated for mass consumption, by remote readers, words whose capacity to harm they could not control. However, as the media evolved throughout the nineteenth and early twentieth centuries, publishers exercised increasingly greater control over the words they distributed and the audiences who would read them. Consequently, when the Supreme Court decided in 1964 to treat tort law as an instrument of speech policy, publisher control made it convenient and theoretically attractive to incentivize bold coverage of government and society by shifting away from strict liability and requiring plaintiffs to prove some media fault. Ironically, almost immediately after the Court shifted the basis for holding media defendants liable for defamation, publisher control over financial decisions, distribution technology, and content generation began to recede. Most notably, the modern media increasingly uses algorithms to produce news stories that are posted directly to the Internet with no human oversight. In other words, the theoretical justification for the Court’s modern fault requirement no longer exists. Moreover, the instrumental self-governance benefits of the modern fault requirement that the Court envisioned have not come to fruition. In fact, absent the quasi-warranty function performed by a strict rule that assigned liability for even inadvertent errors, and the introduction of a regime that excuses errors not arising from intent or negligence, consumers no longer equate “news” with “truth.” This disconnect has arguably contributed to public despair about the possibility of self-educating and self-governing by consuming news. The piece concludes by asking whether, for both theoretical and instrumental reasons, it is worth reconsidering a default rule of strict liability for the defamation tort.

Download the article from SSRN at the link.

June 26, 2020 | Permalink

Wednesday, June 24, 2020

Judge Dismisses Nunes Attempt To Sue Twitter Over Bovine Account

A judge has dismissed Representative Devin Nunes's lawsuit against Twitter over the content of the Twitter account @DevinCow because Section 230 of the Communications Decency Act doesn't allow courts to treat social media platforms as publishers of the content of these accounts. Although Mr. Nunes could still pursue his lawsuit (and beef) against whoever maintains the @DevinCow account, his attorney admits they've been unable to determine who that might be. Maybe it's time to moove on? 

June 24, 2020 | Permalink

Fagan on Optimal Social Media Content Moderation and Platform Immunities

Frank Fagan, EDHEC Business School, is publishing Optimal Social Media Content Moderation and Platform Immunities in the European Journal of Law and Economics. Here is the abstract.

This Article presents a model of the lawmakers' choice between implementing a new content moderation regime that provides for platform liability for user-generated content versus continuing platform immunity for the same. The model demonstrates that lawmakers prefer platform immunity, even if incivility is increasing, if the costs of implementing a platform liability regime are greater than the costs of enforcing status quo law. In addition, inasmuch as implementation of a platform liability regime is coupled with new speech restrictions that are unconstitutional or prohibitively costly, lawmakers prefer immunity, but platforms are free to set strong content moderation policies consistent with existing law. Thus, the private governance function of platforms highlighted by Balkin and others is directly related to lawmakers' ability to enact and enforce alternatives, and further, it goes beyond mere private enforcement of existing free speech restrictions. Inasmuch as lawmakers are prohibited from suppressing unwanted speech by constitutional limits as well as lawmaking and enforcement costs, they give platforms wider discretion to make private suppression decisions. The status quo governance function of platforms, therefore, includes a private lawmaking function for determining which types of speech to suppress, albeit one bounded by the state’s appetite for alternatives.

Download the article from SSRN at the link.

June 24, 2020 | Permalink

During Briefing, State Department Avoids Question About Bolton's New Book

During a recent interview, a State Department employee cut off a Reuters reporter's question about John Bolton's new book in order to allow Secretary of State Mike Pompeo to move on to other questions. More here from USA Today. 

In this discussion of the incident, Politico notes that Bloomberg reporter Nicholas Wadhams asked what avoiding that question actually tells reporters about the First Amendment.  The State Department employee who handled the telephone briefing, Morgan Ortagus, responded that the briefing wasn't about Bolton's book.

June 24, 2020 | Permalink

The Importance of Fact Checking