Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, November 19, 2021

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

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

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

Download the article from SSRN at the link.

November 19, 2021 | Permalink

Carr on Free Speech and Anti-Democratic Violence @TheNewSchool

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

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

Download the article from SSRN at the link.

November 19, 2021 | Permalink

Tuesday, November 16, 2021

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

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

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

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

November 16, 2021 | Permalink

Friday, November 12, 2021

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

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

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

Download the article from SSRN at the link.

November 12, 2021 | Permalink

Thursday, November 4, 2021

Rauch on Customized Speech and the First Amendment

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

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

Download the article from SSRN at the link.

November 4, 2021 | Permalink

Wednesday, November 3, 2021

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

From the Yale Information Society Project:

 

 

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

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

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

 

More here.

 

November 3, 2021 | Permalink

Tuesday, November 2, 2021

Sprague on Normalizing De-Platforming: The Right Not to Tolerate the Intolerant

Robert Sprague, University of Wyoming College of Business, has published Normalizing De-Platforming: The Right Not to Tolerate the Intolerant. Here is the abstract.

Following the attack on the U.S. Capital in January 2021 tens of thousands of accounts, including the Facebook and Twitter accounts of then-President Donald Trump, were suspended or deleted. Section 230 of the Communications Decency Act grants online digital platforms immunity from liability for not only allowing third parties to post information online but also for decisions to remove that content. Since the “Great De-Platforming” of 2021, the viability of § 230 immunity has been called into question. This paper explores the legal boundaries in which online digital platforms operate. It argues that robust online speech requires that platforms must continue to enjoy immunity for their decisions on which content and users must be removed in order to ensure that intolerant speech does not squelch all other speech.

Download the article from SSRN at the link.

November 2, 2021 | Permalink

Goldman on Five Things To Know About Section 230 @ericgoldman @santaclaralaw @CIGIonline

Eric Goldman, Santa Clara School of Law, is publishing Five Things to Know About Section 230 at 2021 Centre for International Governance Innovation (CIGI). Here is the abstract.

This essay, written primarily for Canadian readers, explains five things that Canadians need to know about Section 230, the U.S. law that's become the legal foundation of the modern Internet.

Download the essay from SSRN at the link.

November 2, 2021 | Permalink

Monday, November 1, 2021

Carroll on Obstruction of Journalism @erinccarroll13 @denverlawreview @GeorgetownLaw

Erin Carroll, Georgetown University Law Center, is publishing Obstruction of Journalism in the Denver Law Review (2021). Here is the abstract.

Identifying oneself as press used to be a near-grant of immunity. It meant safer passage through all manner of dangerous terrain. But today, being recognizable as a journalist may be more likely to make one a target. Physical attacks against journalists in the United States increased nearly 1,300 percent in 2020. The rate of online violence against journalists is also soaring. This violence is aimed almost entirely at women, people of color, non-Christians, and non-straight journalists. It silences voices already relegated to the edges. Rather than letting our national conversation branch, the violence attempts to shear it to a white, male, Christian, and straight trunk. At its core, democracy requires that new voices can be heard so that stock stories—and the hierarchies they support—do not become entrenched. Journalists tell us these new stories about ourselves and our communities—stories that bring us into conversation with one another and help us to self-govern. Given this, violence against journalists is an assault on freedom of expression and democracy itself. And it is continuing with impunity. To address the systemic harm caused by the violence, this Article proposes a federal “obstruction of journalism” statute modeled on the obstruction of justice ones. Obstruction of justice is aimed at preserving the effective functioning of our justice system by criminalizing threats against that system. Likewise, obstruction of journalism would criminalize physical violence and particularly severe threats against reporters with the aim of protecting journalism, another system integral to a functioning democracy.

Download the article from SSRN at the link.

November 1, 2021 | Permalink

Wednesday, October 27, 2021

Volokh on Treating Social Media Platforms Like Common Carriers @unsealiecourt @UCLA_Law @JournalSpeech

Eugene Volokh, University of California, Los Angeles, School of Law, has published Treating Social Media Platforms Like Common Carriers? at 1 Journal of Free Speech Law 377 (2021). Here is the abstract.

The rise of massively influential social media platforms—and their growing willingness to exclude certain material that can be central to political debates—raises, more powerfully than ever, the concerns about economic power being leveraged into political power. There is a plausible (though far from open-and-shut) argument that these concerns can justify requiring the platforms not to discriminate based on viewpoint in choosing what material they host, much as telephone companies and package delivery services are barred from such viewpoint discrimination. PruneYard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rumsfeld v. FAIR suggest such common-carrier-like mandates would be constitutional. On the other hand, platforms do have the First Amendment right to choose what to affirmatively and selectively recommend to their users.

Download the article from SSRN at the link.

October 27, 2021 | Permalink

Wright on Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent @IUMcKinney

R. George Wright, Indiana University School of Law, has published Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent. Here is the abstract.

Contemporary free speech law is typically misfocused. This misfocus serves neither the purposes underlying the institution of free speech nor any broader social rights and interests in conflict with freedom of speech. As a general matter, the adjudication of free speech claims should properly focus, centrally, on the intent of the regulating government. More specifically, courts should focus crucially on whether the government has, in enacting or enforcing its speech regulation, intended to suppress or disadvantage a presumed or actual idea or its expression. This sharpened focus would allow the courts to responsibly address a surprisingly broad range of free speech cases, with a substantially diminished need for attention to a number of artificial, if not unnecessary, judicial doctrines that have gradually been incorporated into the free speech case law.

Download the article from SSRN at the link.

October 27, 2021 | Permalink

Tuesday, October 26, 2021

Call For Applications: Legal Fellow--First Amendment Coalition

The First Amendment Coalition (FAC) seeks applicants to join our growing team for a full-time legal fellowship for one year, with the possibility of renewal for a second year.  We seek a highly motivated lawyer with excellent credentials and a demonstrated interest in the relevant areas of law.

The Legal Fellow will work with FAC’s Executive Director and Litigation Director to expand FAC’s strategic litigation program and our ability to provide expert legal assistance to working journalists and others, with a particular focus on those in traditionally underserved communities. FAC’s legal work is focused on enhancing public access to federal, state and local government records and proceedings and protecting the First Amendment rights of free speech and press. FAC also works to provide legal assistance to journalists served with subpoenas for their confidential sources and notes.

The Legal Fellow’s duties will include:
(1) researching, drafting, submitting, and following up on requests for government records under the California Public Records Act and the federal Freedom of Information Act;
(2) identifying, formulating and helping to bring cases in state and federal courts seeking access to government meetings and records, as well as to court proceedings and records;
(3) organizing, researching and drafting amicus briefs, and screening amicus briefs that FAC is asked to join;
(4) helping locate and then assisting pro bono counsel to represent subpoenaed journalists;
(6) other tasks to support FAC’s legal work.

Qualifications:  

The Legal Fellow must:

(1) have a J.D. from a U.S. accredited law school and have excellent academic credentials.  
(2) show a demonstrated interest in First Amendment law and/or FOIA and other access laws. A background in journalism is a plus.
(3) be a self-starter and detail-oriented, with the ability to work collegially and collaboratively on a small staff.
(4) have strong research, analytical and legal writing skills.

It is preferred that the Legal Fellow have one or more years of legal experience working in the relevant legal areas, in a judicial clerkship, law firm, or non-profit organization. California bar membership is required, though FAC will consider recent graduates who have applied for membership to the California bar or attorneys licensed elsewhere who are willing to apply for California bar membership.


We will consider candidates who are able to work remotely only but will give preference to candidates who are, or can be, based in the San Francisco Bay Area, and are able to work in FAC’s offices in San Rafael depending on the state of public health in 2022.

FAC is committed to a diverse and inclusive staff, one that reflects the state and country we serve.  Freedom of information, expression, and of the press are universal ideals but diversity of life experiences can make a big difference in how FAC identifies and litigates legal issues, serves our varied constituencies, and arrives at policy positions on the rights and ideals we care about. To that end, we deliberately seek applicants who can bring different perspectives and experiences to better inform our work promoting and defending free expression, a free press and the public’s right to know.

This is a full-time position.

Applicants are encouraged to submit materials as soon as possible; applications are preferred by November 24.  

Location:

San Rafael, California.

Salary:

$75,000-$85,000 depending on experience. Includes health benefits and eligibility for FAC’s 403(b) retirement plan, including a 5% employer match.

Starting date:

Late summer/early fall 2022.

How to apply:

Apply through the link on this page. Application materials are not accepted via email.

If you have any questions regarding FAC’s Legal Fellow position or the application process, please email legalfellow@firstamendmentcoalition.org.  

October 26, 2021 | Permalink

Monday, October 25, 2021

Penney on Understanding Chilling Effects @jon_penney @MinnesotaLawRev

Jon Penney, Citizen Lab, University of Toronto; Harvard University, Berkman Klein Center for Internet & Society; Osgoode Hall Law School, is publishing Understanding Chilling Effects in volume 106 of the Minnesota Law Review. Here is the abstract.

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, and a range of social science fields toward a more comprehensive and unified understanding. I argue that conventional theories, based on fear of legal or privacy harm, are narrow, empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect its productive dimensions—how chilling effects shape behavior. Drawing extensively on social science literature, I argue that chilling effects are best understood as a form of social conformity. Chilling effects arise out of contexts of ambiguity and uncertainty—like the ambiguity of public or private sector surveillance—but have deeper psychological foundations as well. In moments of situational uncertainty, people conform to, and comply with, the relevant social norm in that context. Sometimes this means self-censorship, but most often it means more socially conforming speech or conduct. A theory of chilling effects as social conformity has important normative, theoretical, and empirical advantages, including greater explanatory and predictive power, clarifying what chilling effects theory is for and what it produces, as well as providing a basis to navigate competing and differing chilling effect claims. It also has implications, I argue, for constitutional standing as well as the First Amendment chilling effects doctrine.

Download the article from SSRN at the link.

October 25, 2021 | Permalink

Laser and Goldman on Deepfakes, Privacy, and Freedom of Speech @ChristaLaser @ericgoldman

Christa Laser, Cleveland-Marshall College of Law, and Eric Goldman, Santa Clara School of Law, have published Deepfakes, Privacy, and Freedom of Speech at YourWitness Blog, Cleveland-Marshall College of Law, 2021. Here is the abstract.

Inauthentic media depictions can harm a person’s privacy and reputation and pose a risk to broader society, as well. “Deepfake” technology allows the creation of a type of inauthentic media using “deep machine learning” techniques, using a computer to quickly swap or simulate faces, voices, and movements. In a blog post on the YourWitness Blog (yourwitness.csulaw.org), Professor Christa Laser argues that Notice and Takedown procedures available in copyright law can be expanded to protect persons from deepfakes. Professor Eric Goldman thinks that such a reform would inhibit the dissemination of truthful information.
Download the post from SSRN at the link.

October 25, 2021 | Permalink

Koppelman on In Praise of Evil Thoughts @AndrewKoppelman @NorthwesternLaw

Andrew Koppelman, Northwestern University School of Law, has published In Praise of Evil Thoughts at 37 Social Philosophy & Policy 52 (2020). Here is the abstract.

Freedom of thought means freedom from social tyranny, the capacity to think for oneself, to encounter even shocking ideas without shrinking away from them. That aspiration is a core concern of the free speech tradition. It is not specifically concerned with law, but it explains some familiar aspects of the First Amendment law we actually have – aspects that the most prevalent theories of free speech fail to capture. It explains the prohibition of compelled speech, and can clarify the perennial puzzle of why freedom of speech extends to art and literature. It also tells us something about the limits of legal regulation, and about the ethical obligations of private actors.

Download the article from SSRN at the link.

October 25, 2021 | Permalink

Tuesday, October 19, 2021

Rozenshtein on Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment @ARozenshtein @UofMNLawSchool

Alan Z. Rozenshtein, University of Minnesota Law School, has published Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment at 1 Journal of Free Speech 337 (2021). Here is the abstract.

The technology giants that dominate Silicon Valley are facing unprecedented calls for regulation across a wide range of policy areas, ranging from content moderation and surveillance to competition, privacy, and consumer protection. But, as this Article explains, the First Amendment may stymie such efforts in ways that go far beyond the much-discussed “First Amendment Lochnerism.” Because technology companies’ core business activity is the facilitation of communication through computer code, they are particularly well suited to wield a deregulatory First Amendment. To avoid the First Amendment becoming a new, digital Lochner, this Article argues that First Amendment doctrine must sharply distinguish between arguments made on behalf of the First Amendment rights of users, which should be embraced, and those made on behalf of the companies themselves, which should be credited only if they advance the First Amendment interests of society, not merely those of the companies themselves. This Article concludes by using the recently enacted Florida law limiting social-media content moderation as a case study for how courts and other legal actors can determine what degree of First Amendment protections is appropriate for Silicon Valley’s speech.

Download the article from SSRN at the link.

October 19, 2021 | Permalink

Monday, October 18, 2021

Call For Applications: 2022 Scholarships for the Annual Conference of the ABA Forum on Communications Law

The Forum is pleased to announce that we are now accepting applications for scholarships to the 27th Annual Conference of the Forum on Communications Law, January 19-20 and February 24-26, 2022. This year’s Annual Conference will feature a virtual program, a full three-day in-person conference and host the first ever In-House Counsel Symposium.

The ABA Forum on Communications Law will award two or three full-ride scholarships to law students to attend the Forum's Annual Conference and the Media Advocacy Workshop. The scholarship includes your registration fee (including meals), lodging for the Forum conference and the Media Advocacy Workshop, airfare, and ground transportation.

To apply and learn more, click here.

October 18, 2021 | Permalink

Friday, October 15, 2021

Sprague on Normalizing De-Platforming: The Right Not to Tolerate the Intolerant @UWyoBiz

Robert Sprague, University of Wyoming College of Business, has published Normalizing De-Platforming: The Right Not to Tolerate the Intolerant. Here is the abstract.

Following the attack on the U.S. Capital in January 2021 tens of thousands of accounts, including the Facebook and Twitter accounts of then-President Donald Trump, were suspended or deleted. Section 230 of the Communications Decency Act grants online digital platforms immunity from liability for not only allowing third parties to post information online but also for decisions to remove that content. Since the “Great De-Platforming” of 2021, the viability of § 230 immunity has been called into question. This paper explores the legal boundaries in which online digital platforms operate. It argues that robust online speech requires that platforms must continue to enjoy immunity for their decisions on which content and users must be removed in order to ensure that intolerant speech does not squelch all other speech.

Download the article from SSRN at the link.

October 15, 2021 | Permalink

Wednesday, October 13, 2021

Corbin on The Pledge of Allegiance Revisited: Requiring Parental Consent @CarolineMCorbin @IndianaLJ

Caroline Mala Corbin, University of Miami School of Law, is publishing The Pledge of Allegiance Revisited: Requiring Parental Consent in the Indiana Law Journal. Here is the abstract.

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states – Texas and Florida – students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children. The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the substantive due process rights of parents. These mandatory pledge laws are viewpoint-based and therefore presumptively unconstitutional. While the free speech rights of students are more circumscribed than adults, none of the established justifications for curtailing student speech rights at school apply in this case. On the contrary, forcing students to pledge against their will exemplifies all the harms of compelled speech. Finally, parents’ constitutional right to control the upbringing of their children is meant to protect parents from the state, not to empower parents to trample on the rights of their children. In the end, the parental permission rule is simply a pretext for the state’s own viewpoint-based compulsion.

Download the article from SSRN at the link.

October 13, 2021 | Permalink

Westkamp on Two Constitutional Cultures, Technological Enforcement and User Creativity: the Impending Collapse of the EU Copyright Regime? @QMIPRI

Guido Westkamp, Queen Mary Intellectual Property Research Institute, has published Two Constitutional Cultures, Technological Enforcement and User Creativity: the Impending Collapse of the EU Copyright Regime? Here is the abstract.

In Pelham, the EU Court of Justice and the German Federal Constitutional Court reached diametrically opposing conclusions on the relevance of freedom of art in copyright law. The different stances permit a speculative prediction – they can have immediate consequences for the predictable challenges against the new platform liability regime under Article 17 DSMD, and its associated dangers of wide-spread filtering and blocking. The article discusses the numerous constitutional implications with specific attention given to the respective interests affected by the new regime (authors, exploiters, users, platforms) in light of the divergent approaches from the perspective of what appears to be two rather conflicting constitutional cultures: specific perceptions of fundamental rights and proportionality under German law versus an approach tending to emphasise market integration under the EU legal order. Recent assertions by the German Constitutional Court redevising the division of competences between national and EU law permit the prediction of a disturbing future collision course between the two systems, with potentially massive implications for EU copyright law by and large.

Download the article from SSRN at the link.

October 13, 2021 | Permalink