Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, November 11, 2019

Social Media, Traditional Media, and the Naming of the Whistleblower

From CNN: Both Facebook and YouTube announced on Friday that they are removing mentions of the whistleblower's name from their platforms, citing concerns that such content could could lead to harm and pointing to their policy prohibiting "outing of witness, informant, or activist." Facebook noted that if the media generally moved toward widespread disclosure of the whistleblower's name, the company might reconsider its decision. YouTube announced it was removing videos that alleged a particular individual was the whistleblower.

However, a Twitter spokesperson said that mentioning a particular person's name as the whistleblower did not constitute a violation of the company's policies. Both CNN and Fox have told their staffs not to speculate about the whistleblower's identity on air. However,  two Fox News guests have identified specific persons as the whistleblower. Lars Larson named someone on November 8,  and Mollie Hemingway named someone on November 11th, to the consternation of Howard Kurtz. 

November 11, 2019 | Permalink

Teeni-Harari and Yadin on Regulatory Literacy: Rethinking Television Rating in the New Media Age @Sharon_Yadin

Tali Teeni-Harari and Sharon Yadin, both of the Peres Academic Center, are publishing Regulatory Literacy: Rethinking Television Rating in the New Media Age in volume 88 of the University of Missouri-Kansas City Law Review (2019). Here is the abstract.

Rating systems for the regulation of television programs currently address parents, advising them of the presence of content considered inappropriate for children so that they can screen what their children watch. However, today’s children increasingly choose television content on their own, as parental supervision is consistently declining. This essay argues that the existing regulatory regime for rating television content is unsuited to the present-day viewing styles of youngsters, and presents policy recommendations.

Download the article from SSRN at the link.

November 11, 2019 | Permalink

Tuesday, November 5, 2019

Marzen on A Constitutional Right to Public Information @floridastate

Chad G. Marzen, Florida State University, has published A Constitutional Right to Public Information. Here is the abstract.

In the wake of the 2013 United States Supreme Court decision of McBurney v. Young (569 U.S. 221), this Article calls for policymakers at the federal and state levels to ensure governmental records remain open and accessible to the public. It urges policymakers to call not only for strengthening of the Freedom of Information Act and the various state public records law, but to pursue an amendment to the United States Constitution providing a right to public information. This Article proposes a draft of such an amendment: The right to public information, being a necessary and vital part of democracy, shall be a fundamental right of the people. The right of the people to inspect and/or copy records of government, and to be provided notice of and attend public meetings of government, shall not unreasonably be restricted. This Article analyzes the benefits of the amendment and concludes the enshrining of the right to public information in both the United States Constitution as well as various state constitutions will ensure greater access of public records and documents to the general public, consistent with the democratic value of open, transparent government.

Download the article from SSRN at the link.

November 5, 2019 | Permalink

Monday, November 4, 2019

CBS Asks Federal Judge To Dismiss Fairfax Defamation Suit

CBS is asking a federal district court to dismiss Virginia Lieutenant Governor Justin Fairfax's defamation suit against the network, saying that Mr. Fairfax's claim that an in-house attorney who knew both Mr. Fairfax and one of the women who accused the Virginia Lt. Governor of sexual assault knew of the woman's "history of mental and emotional instability" and should have known that her statements shouldn't have been relied on. The network's defense is that Mr. Fairfax cannot show actual malice and also that the network's report is fair to both parties. More here from Law.com and the Virginia Mercury.

Here's a story from NPR about the filing of the suit requesting $400 million in damages in September of 2019. More here from the Washington Post. 

November 4, 2019 | Permalink

Thursday, October 24, 2019

Elau on the Laws Impacting on Freedom of Expression in Uganda, 2019 @elauemm

Emmanuel Elau, Uganda Christian University Faculty of Law, has published The Laws Impacting on Freedom of Expression in Uganda, 2019. Here is the abstract.

Freedom of expression in Uganda is a fairly contentious area. The Constitution of Uganda, 1995 provides for the right but also very quickly limits in public interest and other considerations. There are a plethora of other laws in play that introduce both civil and penal sanctions for those that violate their rights to expression. The case of Stella Nyanzi could be an interesting one. She wrote several poems against the head of state that did not go down well with the state and resulted in her conviction and sentencing. Some of the sections of the law under which she was being tried were challenged in the constitutional law but that case remains pending at the court. I hope you find this article an interesting read.

Download the article from SSRN at the link.

October 24, 2019 | Permalink

Kendrick on The Book Has Two Faces: Trevor Ross's Writing in Public @lckendrick @uvalaw

Leslie Kendrick, University of Virginia School of Law, is publishing The Book Has Two Faces: Trevor Ross's Writing in Public: Literature and the Liberty of the Press in Eighteenth Century Britain in Critical Analysis of Law: An International & Interdisciplinary Law Review. Here is the abstract.

This review of Trevor Ross’s Writing in Public: Literature and the Liberty of the Press in Eighteenth Century Britain is part of a symposium in Critical Analysis of Law: An International & Interdisciplinary Law Review. Ross’s book traces the evolution of laws regulating public discourse after the decline of English print licensing. Ross argues that the development of the public sphere in eighteenth century Britain left literature in a strange, contradictory position: simultaneously central to civic society and wholly apart from it. This claim has its contemporary counterparts. It echoes contemporary debates about what literature is “for” among critics and philosophers. It also echoes debates about literature within contemporary free speech law, where Robert Bork and others have argued that literature should not receive protection because it is not sufficiently political, while literature’s defenders have argued for its protection with varying plausibility. Literature’s relationship to public discourse continues to bedevil us, and Ross offers a stimulating account of how this might have come to be.

Download the essay from SSRN at the link.

October 24, 2019 | Permalink

Tuesday, October 22, 2019

Westling on Whether Deep Fakes Are a Shallow Concern @jeffreywestling

Jeffrey Westling, R Street Institute, has published Are Deep Fakes a Shallow Concern? A Critical Analysis of the Likely Societal Reaction to Deep Fakes. Here is the abstract.

Deep fakes, a class of AI generated audio-visual materials designed to appear as an authentic record of actual speech, garnered increasing attention as worries of foreign disinformation campaigns and so called “fake news” have increased. Some critics raise concerns that this new technology will be too realistic to differentiate fact from fiction, allowing bad actors to manipulate elections, induce societal unrest, and incite panic. In this view, the influx of deep fake content may lead to the death of trust in media outright, as people will assume all content may be artificially-generated “fake news.” Yet close consideration of the hypotheses put forth so far reveals an unstated assumption that has not yet received attention: that deep fakes, once they are technologically advanced and easy to produce, will either be believed without question or will fundamentally shift public perceptions of video such that even real ones will be dismissed. This paper aims to fill the gap in the literature by critiquing the assumption that deep fakes, in the end, will necessarily fool the public into believing lies or rejecting truth. In fact, the likely societal reaction outcome may lie somewhere in the middle, in which society develops proxy mechanisms for assessing the reliability of video evidence in the wake of deep fake technology. That likelihood is based on two classes of observations. First, the reason we trust images and video may stem largely from societal norms about the use of the medium, rather something inherent to the medium itself. Second, history has shown that similar concerns about digital photo editing techniques did not lead to either of the outcomes predicted for societal perceptions of truth; how society reacted to fake photos sheds much light on what is likely to happen with regard to deep fake videos. Identifying the likely and less-drastic social trends in reaction to deep fakes is exceptionally important today, because ongoing fears of the technology have prompted calls for regulatory responses. For example, many propose amending Section 230 of the Communications Decency Act (“CDA 230”) to increase liability on platforms who do not take reasonable steps to limit the spread of deep fake content on their platforms. To the extent that there is a likely scenario in which ordinary operations of society are likely to manage the impact of deep fakes on perceptions of truth, the need for policy responses (that no doubt will be imperfect and potentially detrimental to valuable technological advances) is strongly lessened. This paper proceeds by covering two main areas: emerging technologies and online platform regulation. It first explains the likely reaction to deep fakes by reviewing the development of similar technologies as well as the key distinctions from technologies of the past. Second, the paper examines whether regulatory responses to deep fakes, focusing primarily on calls to amend CDA 230, are necessary or whether existing regulatory tools and free market forces will be sufficient.

Download the article from SSRN at the link.

October 22, 2019 | Permalink

USPS Issues Stamp In Honor of Gwen Ifill

Via Judy Woodruff and Kevin Madden, the United States Postal Service announces that it is issuing a new Forever Stamp honoring the late journalist Gwen Ifill. More here from the USPS website.

October 22, 2019 | Permalink

Monday, October 21, 2019

Kendrick on Miami Herald v. Tornillo: Freedom of Speech for Whom? @lckendrick @UVALaw

Leslie Kendrick, University of Virginia School of Law, is pubblishing Miami Herald V. Tornillo: Freedom of Speech for Whom? in Painting Constitutional Law (forthcoming). Here is the abstract.

This piece is part of a forthcoming volume entitled Painting Constitutional Law, which pairs artist Xavier Cortada’s series of paintings, “May It Please the Court,” with commentary on each case represented in the series. Cortada’s painting The Miami Herald Publishing Company v. Tornillo depicts a pair of hands clutching a crumpled newspaper. The reader is otherwise invisible to us, hidden behind the newspaper that occupies the canvas. The newspaper pages are in full, dazzling color, and they are covered with mouths—bright red lips, wagging tongues, caught midsentence, talking all at once. The effect is that of a colorful cacophony. Whose mouths are these? Are they speaking as one, or in many different voices? This visual depiction of Miami Herald v. Tornillo gets to the heart of the case. Whose voices get to speak in the newspaper? Who decides that question? Should the media represent a diversity of voices and viewpoints? Or is media access controlled by media owners? Tornillo asked the Supreme Court to decide these questions as a matter of First Amendment law. In doing so, the Court confronted two different visions of the First Amendment: one based in equality, which mandated media access for multiple voices, and one based in liberty, which protected the media from interference, including access by third parties. Rarely has the Supreme Court faced such a stark choice between First Amendment paradigms, and rarely has it stated its view of the First Amendment as clearly. How the issue came to the Court, and what the Court said about it, are stories of constitutional and media history. They also involve two larger-than-life Florida figures, Pat Tornillo and the Miami Herald. Without them, this particular issue may never have come to the Supreme Court, at least not in this particularly stark way.

Download the essay from SSRN at the link.

October 21, 2019 | Permalink

Schragger on Unconstitutional Government Speech @UVALaw

Richard Schragger, University of Virginia School of Law, has published Unconstitutional Government Speech as Virginia Public Law and Legal Theory Research Paper No. 2019-56. Here is the abstract.

This Article uses recent controversies over government-sponsored religious symbols and Confederate iconography to consider the appropriate constitutional limits on the government’s symbolic expression. It contrasts two types of constitutional harm that can arise from the government’s expressive acts. Expressions that harm refers to denigrating or exclusionary government speech that causes material harms to members of the community. Expressive wrongs describes constitutional wrongs that arise when the government has an improper motive or when a government action conveys an improper social meaning. After describing instances in which the Supreme Court has embraced one or the other theory of constitutional harm, I argue that symbolic speech, whether religious or not, can and should be subject to constitutional constraints under either theory. The Supreme Court has been increasingly unwilling to impose substantive constraints on government symbolic speech, however. This past Term, the Court decided American Legion v. American Humanist Association, holding that a forty-foot tall Latin cross in Bladensburg, Maryland did not violate the Establishment Clause. It further held that long-standing government-sponsored religious symbols enjoy a presumption of constitutionality. In this Article, I assume the ascendance of what I call the majoritarian public square. But I argue that even as the doctrine becomes less amenable to imposing content constraints on government speakers, it should be attentive to the relative representativeness of government speech. Government symbolic speech that is a product of, or results in, the entrenchment of permanent symbolic majorities, that favors some private speakers over others, or that is imposed by one political community on another, should be constitutionally troubling. I apply these minimal conditions for constitutional government speech to the Bladensburg Cross case and cases involving Confederate monuments.

Download the article from SSRN at the link.

October 21, 2019 | Permalink

Monday, October 14, 2019

Southern Methodist Law Review Forum Open For Responses To Law Review Articles: Engage In the Dialogue! @SMULawReview

The SMU Law Review Forum is inviting responses to its latest issue, The Free Speech Symposium, or to any specific article in it, from interested readers. The editors have made submission links available here.

https://smulawjournals.org/smulr/

https://smulawjournals.org/smulrforum/submissions/response-submissions/

October 14, 2019 | Permalink

Thursday, October 10, 2019

University of Illinois Claims NPR Reporters Are U Employees For Purposes of Title IX Reporting; ProPublica Rejects Claim

ProPublica has responded to a claim from the University of Illinois (Springfield) that NPR Illinois reporters who also report for ProPublica are considered mandatory reporters under a relevant Illinois statute and must turn over information they uncover during sexual harassment and misconduct reporting investigations. See the University of Illinois FAQ here.

 

Writes ProPublica, 

We generally share tips with our partners, including those in the Local Reporting Network. In this case, however, ProPublica itself will collect these tips and respond to them. The university policy does not apply to us. NPR Illinois reporters will not have access to tips sent to our email address, texts or calls to our phone number or people who fill out our questionnaire unless the cases are already known to the University of Illinois or unless they involve other colleges. We also have added clarifying language to our stories and our questionnaire to make this clear.

 

More here. 

See the Illinois statute here.

October 10, 2019 | Permalink

Monday, October 7, 2019

SMU Law Review's Free Speech Symposium: The 100th Anniversary of Schenck and Abrams @SMULawReview @SMULawSchool

Friday, October 4, 2019

Day on Monopolizing Free Speech

Gregory Day, University of Georgia, C. Herman and Mary Virginia Terry College of Business, is publishing Monopolizing Free Speech in the Fordham Law Review. Here is the abstract.

The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This is supposed to maximize social welfare since the market is believed to promote good ideas and condemn bad ones better than the state. Nevertheless, anxiety is mounting that large technology corporations exercise unreasonable power in the marketplace of ideas. Because the ability of “big tech” to abridge speech lacks constitutional obstacles, an array of litigants, politicians, and commentators have recently begun to claim that the act of suppressing speech is anticompetitive and thus should offend the antitrust laws. Their theory, however, seems contrary to antitrust law. Since antitrust is intended to promote consumer welfare in commercial markets, antitrust liability is typically reserved for firms that have harmed consumers economically. This generally requires a showing of higher prices or restricted output. As such, the courts have largely declared that speech entails noncommercial activity which antitrust has no authority to govern, despite the emergence of rhetoric and lawsuits seeking to do just that. This Article argues that, contrary to precedent, antitrust law can and should promote commercial speech. The economy has evolved whereby firms and consumers depend on information, ideas, and speech even when traded at zero-prices — known as the “information economy.” In turn, technology firms encounter incentives to suppress types of commercial speech and, when wielding market power, the ability to do so. For example, Apple and Google are alleged to bury information, advertising, and other forms of commercial expression about rival products so as to achieve anticompetitive ends, harming consumers and markets. This Article asserts that enforcement should condemn, in certain instances, the exclusion of commercial information even when consumers enjoy low prices, though resist the emergence of rhetoric calling for the integration of all types of speech — e.g., expressive political, and social — into antitrust’s framework. If antitrust promoted noncommercial speech, it would erode the First Amendment as well as antitrust law.

Download the article from SSRN at the link.

October 4, 2019 | Permalink

Wednesday, October 2, 2019

Strasser on Pickering, Garcetti, and Academic Freedom @CapitalLaw

Mark Strasser, Capital University Law School, has published Pickering, Garcetti, and Academic Freedom at 83 Brooklyn Law Review 579 (2018). Here is the abstract.

While the United States Supreme Court long ago recognized that individuals do not lose their free speech rights simply by virtue of being state employees, the contours of those protections have been evolving over the past several decades. The proper way to apply these protections in the academic context is confusing, especially after Garcetti v. Ceballos in which the Court suggested that First Amendment protections do not attach insofar as individuals are speaking as employees rather than as citizens. The circuit courts have adopted a dizzying set of rules to determine when First Amendment protections are triggered in the academic context, some distinguishing between the protections afforded to college professors and the protections afforded to primary and secondary school teachers and others distinguishing based on whether the expression is appropriately characterized as teaching, scholarship or, instead, something else. Still others offer a different approach. Even when the Garcetti exception is not triggered, the circuits offer very different interpretations of how to apply the prevailing jurisprudence. Until the Court offers greater guidance, we can only expect the circuits to continue to treat relevantly similar cases differently, to diverge with respect to what academic freedom includes, and to put the benefits accrued from the recognition of academic freedom at risk.

The full text is not available from SSRN at the link.

October 2, 2019 | Permalink

Tuesday, September 24, 2019

Cetina Presuel and Martinez Sierra on Social Media Platforms as News Publishers and Distributors @RodrigoCetina

Rodrigo Cetina Presuel and J. Martinez Sierra have published Algorithms and the News: Social Media Platforms as News Publishers and Distributors at 18 Revista De Comunicación 261-285 (2019). Here is the abstract.

With billons of users, social media platforms (e.g. Facebook) are dominant players in a highly-concentrated online news market. They have great power over the distribution of information to their users, and over the organizations and individuals that produce it. Social media platforms use algorithms to perform functions traditionally belonging to news editors: deciding on the importance of news items and how they are disseminated. However, they do not acknowledge the role they play in informing the public as traditional news media always have and tend to ignore that they also act as publishers of news and the responsibilities associated with that role. This paper argues that it is essential for social media platforms to understand and embrace their role as both news publishers and distributors and highlights the essential responsibilities they must undertake so they can satisfy the information needs of their audiences and protect the public’s right to information.

Download the article from SSRN at the link.

September 24, 2019 | Permalink

Silbey and Hartzog on the Upside of Deep Fakes @JSilbey @hartzog

Jessica M. Silbey and Woodrow Hartzog, both of Northeastern University School of Law, have published The Upside of Deep Fakes at 78 Maryland Law Review 960 (2019). Here is the abstract.

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic discourse and trust in social institutions, undermining public safety, national security, journalism, and diplomacy, deepening social divisions, and manipulation of elections. But it might not be all bad. Even beyond purported beneficial uses of deep-fake technology for education, art, and science, the looming deep-fake disaster might have a silver lining. Hear us out. We think deep fakes have an upside. Crucial to our argument is the idea that deep fakes don’t create new problems so much as make existing problems worse. Cracks in systems, frameworks, strategies, and institutions that have been leaking for years now threaten to spring open. Journalism, education, individual rights, democratic systems, and voting protocols have long been vulnerable. Deep fakes might just be the straw that breaks them. And therein lies opportunity for repair. Below we briefly address some deep problems and how finally addressing them may also neutralize the destructive force of deep fakes. We only describe three cultural institutions – education, journalism, and representative democracy — with deep problems that could be strengthened as a response to deep fakes for greater societal gains. But we encourage readers to think up more. We have a hunch that once we harness the upside of deep fakes, we may unlock creative solutions to other sticky social and political problems.

Download the article from SSRN at the link.

September 24, 2019 | Permalink

Monday, September 23, 2019

University of Georgia School of Law Seeks Full-Time Director for New First Amendment Clinic @UGASchool of Law

The University of Georgia School of Law is accepting applications for a full-time director for its new First Amendment Clinic. The position will begin in January 2020. Information about the posting is available here: https://www.ugajobsearch.com/postings/122930.

September 23, 2019 | Permalink

Norton on The Government's Speech and the Constitution

Helen L. Norton, University of Colorado Law School, has published Introduction (Excerpt), The Government's Speech and the Constitution, from The Government's Speech and the Constitution (Cambridge University Press, 2019). Here is the abstract.

When we discuss constitutional law, we usually focus on the constitutional rules that apply to what the government does. Far less clear are the constitutional rules that apply to what the government says. When does the speech of this unusually powerful speaker violate our constitutional rights and liberties? More specifically, when does the government’s expression threaten liberty or equality? And under what circumstances does the Constitution prohibit our government from lying to us? In “The Government’s Speech and the Constitution,” Professor Helen Norton investigates the variety and abundance of the government’s speech, from early proclamations and simple pamphlets, to the electronic media of radio and television, and ultimately to today’s digital age. This helps us understand how the government’s speech has changed the world for better and for worse, and why the government’s speech deserves our attention and at times our concern.

Download the excerpt from SSRN at the link.

September 23, 2019 | Permalink

Thursday, September 19, 2019

FCC Establishes First Two Innovation Zones

From an FCC press release:

 

FCC ESTABLISHES FIRST TWO INNOVATION ZONES
New York City & Salt Lake City Projects Empower Advanced Wireless Technology and 5G-Ready Network Experimentation
--
WASHINGTON, September 16, 2019—The Federal Communications Commission today announced the creation of its first two Innovation Zones, in New York City and Salt Lake City. These Innovation Zones will be city-scale test beds for advanced wireless communications and network research, including 5G networks.

“Few concepts are more central to America than experimentation and innovation. It’s what we do best,” said FCC Chairman Ajit Pai. “So it’s exciting and inspiring to see our Innovation Zones program taking off. These projects will test new advanced technologies and prototype networks like those that can support 5G technologies. We’re also establishing a process to ensure new innovators can have access to this testing resource while protecting current, licensed users. I thank all those who are leading these efforts on the ground and stand committed to continuing our efforts to empower innovators.”

These wireless technology test beds extend the geographic areas in which already-licensed experimental program licensees can conduct tests. Under this initiative, parties have flexibility to conduct multiple non-related experiments under a single authorization within a defined geographic area to develop new technologies and services while protecting incumbent services against harmful interference. This initiative allows experimental program license holders which are licensed to operate elsewhere to also use the New York City and Salt Lake City Innovation Zones. Parties must comply with each zone’s FCC-established guidelines, under the zone administrator’s guidance, and provide advanced notice of their project.

The National Science Foundation’s Platform for Advanced Wireless Research formally proposed these particular Innovation Zones, saying they “will enable experimental exploration of robust new wireless devices, communication techniques, networks, systems, and services that will revolutionize the nation's wireless ecosystem, thereby enhancing broadband connectivity, leveraging the emerging Internet of Things (IoT), and sustaining US leadership and economic competitiveness for decades to come.”

In New York City, the Innovation Zone will support COSMOS (Cloud Enhanced Open Software Defined Mobile Wireless Testbed for City-Scale Deployment). COSMOS, located in West Harlem, will be run jointly by Rutgers University, Columbia University, and New York University, in partnership with the City of New York.

In Salt Lake City, the Innovation Zone will support POWDER (A Platform for Open Wireless Data-driven Experimental Research with Massive MIMO Capabilities). POWDER, which will operate in several connected corridors of Salt Lake City, will be run jointly by the University of Utah and Rice University, in partnership with Salt Lake City.

The National Science Foundation selected smart city-research organization US Ignite and Northeastern University to form the Platform for Advanced Wireless Research Project Office, which will manage the Innovation Zones. Innovation Zones partner universities and the cities themselves will enable test bed development and deployment supported by the National Science Foundation along with a consortium of telecom and tech companies.

The FCC’s Innovation Zone initiative builds off the Commission’s 2013 rulemaking to update its experimental radio service program. The Public Notice released today by the FCC’s Office of Engineering and Technology to establish the Innovation Zones and provide details of each zone is available at: https://docs.fcc.gov/public/attachments/DA-19-923A1.pdf

September 19, 2019 | Permalink