Media Law Prof Blog

Yoo on What's In a Name? Common Carriers, Social Media, and the First Amendment @pennlaw

CHristopher S. Yoo, University of Pennsylvania Law School, is publishing What’s In a Name?: Common Carriage, Social Media, and the First Amendment in volume 118 of the Norhwestern University Law Review Online. Here is the abstract.

Courts and legislatures have suggested that classifying social media as common carriers would make restrictions on their right to exclude users more constitutionally permissible under the First Amendment. A review of the relevant statutory definitions reveals that the statutes provide no support for classifying social media as common carriers. Moreover, the fact that a legislature may apply a label to a particular actor plays no significant role in the constitutional analysis. A further review of the elements of the common law definition of common carrier reveals that four of the purported criteria (whether the industry is affected with a public interest, whether the social media companies possess monopoly power, whether they are involved in the transportation and communication industries, and whether social media companies received compensating benefits) do not apply to social media and do not affect the application of the First Amendment. The only legitimate common law basis (whether an actor holds itself out as serving all members of the public without engaging in individualized bargaining) would again seem inapplicable to social media and have little bearing on the First Amendment. The weakness of these arguments suggests that advocates for limiting social media’s freedom to decide which voices to carry are attempting to gain some vague benefit from associating their efforts with common carriage’s supposed historical pedigree to avoid having to undertake the case-specific analysis demanded by the First Amendment’s established principles.

Download the article from SSRN at the link.

Post on Public Accommodations and the First Amendment: 303 Creative and "Pure Speech" @YaleLawSch

Robert Post, Yale Law School, has published Public Accommodations and the First Amendment: 303 Creative and "Pure Speech." Here is the abstract.

In the recent case of 303 Creative v. Elenis, the Court held that the First Amendment precludes the application of a Colorado public accommodations statute to a potential designer of wedding websites (Lorie Smith) who proactively objected to working for clients involved in same-sex weddings. At stake in the opinion is the important question of how antidiscrimination statutes can be reconciled with the First Amendment. Gorsuch structured his opinion for the Court on the basis of a simple syllogism. The major premise of the syllogism is that the Smith’s websites would be “pure speech”; the minor premise is that the First Amendment forbids the compulsion of “pure speech.” The conclusion is that Colorado could not apply an antidiscrimination statute to compel Smith to work for clients who would require her to produce websites that she would rather not construct. Although “pure speech” is not a well-defined First Amendment concept, Gorsuch seeks to establish the major premise of his syllogism on the basis of stipulations to which the parties in 303 Creative agreed. These stipulations are both tendentious and extensive, taken almost verbatim from Smith’s complaint. The article closely examines these stipulations to show that in 303 Creative Gorsuch defines “pure speech” to consist of bespoke words, images or symbols that are designed to communicate and that reflect a vendor’s own speech. It argues that, absent the parties’ stipulations, Smith’s websites likely should not have been characterized as this kind of pure speech. The article then examines the minor premise of the 303 Creative syllogism. It shows that (1) The premise inaccurately summarizes First Amendment doctrine; (2) The premise effectively undermines all public accommodation laws, which can be enforced only if vendors are required to offer equal treatment to customers regardless of race, sex or sexual orientation. This requirement will inevitably compel vendors to engage in “pure speech”; (3) Pure speech is routinely compelled if it is commercial speech; (4) Pure speech cannot be compelled if it is public discourse; and (5) 303 Creative should thus have turned on the question of whether Smith’s websites are properly characterized as commercial speech or as public discourse. As written, 303 Creative is so abstract and overreaching that it will empower lower courts to mutilate public accommodations laws at will. The likely outcome is that 303 Creative will be erratically applied in ways that reflect the antecedent political ideology of courts. The Supreme Court itself exemplified this problem by not applying the reasoning of 303 Creative to its own decision in Students for Fair Admissions (“SFA”) v. President and Fellows of Harvard, where it used an antidiscrimination statute (Title VI) to alter educational messages that an expressive association (Harvard University) sought to communicate. Much of the confusion of 303 Creative likely stems from the Court’s implicit transfer of concepts applicable to Free Exercise claims to the distinct and inappropriate context of free speech jurisprudence.

Download the article from SSRN at the link.

Knight Institute: Call For Papers: New Voices In Press Freedom @knightcolumbia

From the Knight Institute: A Call For Papers: New Voices In Press Freedom

The Knight Institute invites submissions from junior scholars exploring the news in changing times.

 

The Knight First Amendment Institute at Columbia University seeks proposed papers from junior scholars on the themes of its 2023-24 project, The Future of Press Freedom: Democracy, Law, and the News in Changing Times. These papers will be featured at a symposium of the same name at Columbia University on May 2-3, 2024.

The project, piloted by Senior Visiting Research Scholars RonNell Andersen Jones and Sonja R. West, aims for the first time to explore in real depth what the Constitution, law, and policy can do about identifying and protecting core press functions. It will examine the role of a free and protected press in preserving a healthy American democracy, debate the benefits and disadvantages of special doctrinal protection for performers of press functions, consider the place that protection for newsgatherers holds in the Supreme Court’s evolving First Amendment frameworks, and seek to develop functional doctrines that can protect performers of these roles as new methods for producing and consuming news emerge.

This Call is open only to junior scholars. Authors who are tenured or tenure-track in any discipline at a college or university, and have not been teaching at either of those ranks for a total of more than seven years, are eligible. We will accept jointly authored submissions, but each of the coauthors must be individually eligible to participate in the Call. There is no limit on the number of submissions by an individual author.

Interested junior scholars should send a 250-word abstract and a current CV to [email protected] by December 1, 2023. The abstract should describe the central claim of the paper and identify the main arguments in support of that claim. Proposed papers must be new to this project and not previously published in any form. We intend to review all of the abstracts by the end of November, with the goal of commissioning up to four papers of 10,000-12,000 words. The selected papers will be published alongside the work of major legal and communications scholars in an online series hosted by the Knight Institute and will ultimately appear in an anticipated edited volume published by Cambridge University Press. Selected authors will present their papers as part of a symposium panel.

First drafts will be due April 5, 2024.  These drafts will also be circulated to all participants in advance of the symposium, which will take place on May 2-3, 2024 at Columbia University. Final submissions will be due July 1, 2024.

Each author will receive an honorarium of $6,000 (divided evenly among co-authors if needed).

Questions that might be explored in submissions include, but are not limited to, the following:

The benefits and disadvantages of doctrinal press-function exceptionalism: What are the pros and cons of targeted statutory and constitutional protection of the press functions? Legislatures and courts have tussled in the past with the question of whether speakers and publishers performing a press function need to have legal protections beyond those available to all speakers. As local journalism fades and reporters increasingly come under attack, are there stronger reasons to consider granting journalists privileges that other speakers do not possess? As the news ecosystem changes, how can we guarantee access for some parties to perform government oversight (for example, the right for public-serving newsgatherers to remain on a scene despite dispersal orders at protests or after curfews during pandemics, or the right to access jails or border detention facilities otherwise closed to the public)? What losses to accountability and transparency come from doctrinal homogeneity without any press exceptionalism, and what risks come from carving out special treatment? Some have shied away from the question because of the difficulty of defining “the press,” but can a new focus on press functions provide clarity?

Identifying performers of the press function: How do we identify which functions qualify as press functions? How, if at all, can we shape doctrine and legal policies that grant rights to those acting as proxies for the public without privileging the powerful over the weak? How can we specially protect performers of the press function without ratcheting the levers of authoritarianism by granting power to the government to decide who is privileged? If this line-drawing occurs, what are the best tools for distinguishing performers of the press function from performers of other functions? What protections might be constitutional necessities for fulfilling the wider purpose of the First Amendment guarantee of freedom of the press, and how can we guarantee that this protection exists in the future, even if media models change?

The role of a free and protected press in a healthy democracy: What specific press functions does a democracy need in order to sustain itself? What are the interrelationships between the fragility of the local news ecosystem and the fragility of American democracy? Is it important to have shared processes for finding truth and common shapers of public conversations? Must a healthy democracy have trans-partisan neutral gatekeepers of the sort that predominated the media in the mid-to-late twentieth century, or does history suggest that a partisan press can combat government secrecy and corruption, provide transparency, and guide healthy, fact-based public discourse? How do the concerns about waning trust in the press parallel concerns about the distrust of other democratic and knowledge institutions and the risks facing those institutions? Given the deep divisions on questions of press trustworthiness, how can we foster newsgathering that is vital to civic health, and what is the proper role of constitutionalism, law, and policy in this space? Are the rights exercised by performers of the press function best viewed as press rights or should they be seen as exercises of the wider collective rights of the citizenry? How do principles of listener rights and debates over trusted information-gathering surrogates illuminate the ways that law and policy should protect press actors? How can press-function protections best be crafted to serve the needs of real information consumers and citizens in a democracy?

Press-function protection and the Supreme Court’s evolving First Amendment frameworks: As a practical matter, how do these conversations situate themselves within broader First Amendment doctrine at a time when the U.S. Supreme Court has been First Amendment-expansive but not press-positive? Has press protection fallen outside the wider First Amendment capaciousness of the Roberts Court, and how might it be conceptualized to tap into that Court’s otherwise aggressively libertarian expressive-freedom agenda? Doctrinally, how do structural changes in the power dynamics between the press and the government alter the assumptions on which the Court’s old media-law cases rest, and does the waning ability of the press to engage in self-protection require more aggressive protection for the press function? Twentieth-century First Amendment doctrine presupposes the existence of a legacy media that has power—in the form of audience reach, financial resources, political clout, and governmental reliance on the press for public messaging. If these facts have changed, should cases declining to read the Constitution to positively protect the press function be reconsidered?

 

Read the Call here.

Hill on History's Speech Acts @CWRU_Law @IowaLawReview

B. Jessie Hill, Case Western Reserve University School of Law, has published History's Speech Acts at 108 Iowa Law Review 2215 (2023). Here is the abstract.

This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. This Essay argues that these forms of expression can best be understood as “speech acts” that seek to construct a particular social reality, often in defiance of political and social fact. They thus not only express but also enact social hierarchies. It further argues that the Supreme Court’s most recent opinions dealing with the constitutionality of religious displays continue this social and political project of constructing a white Christian identity.

Download the essay from SSRN at the link.

New Publication: Global Perspectives on Press Regulation: Volume 1: Europe (Hart/Bloomsbury) @hartpublishing

New from Hart Publishing:

Global Perspectives on Press Regulation, Volume 1: Europe.

Discount offer from the publisher here.

 

Sep 2023   |   9781509950348   |   296pp   |   Hbk   |    RRP: £90

Discount Price: £72

Order online at www.bloomsbury.com  – use the code GLR AQ7 to get 20% off!

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Sep 2023   |   9781509950348   |   296pp   |   Hbk   |    RRP: £90

Smith on Moral Panic and the First Amendment @msmith750 @StMarys_Law @buffalolawrev

Michael L. Smith, St. Mary's University School of Law, is publishing Moral Panic and the First Amendment in volume 72 of the Buffalo Law Review. Here is the abstract.

Debates over free speech in the United States frequently see advocates of strong, broad protections at odds with those who argue that unfettered free speech tends to harm society’s most vulnerable. Free speech advocates frequently invoke the marketplace of ideas and argue that the antidote to false or harmful speech is more speech. In response, critics contend that speech itself causes harm and chills counter-speech—effectively excluding marginalized groups, including women and LGBTQ people, from discourse altogether. These critics advocate limitations on robust free speech doctrine targeting speech that harms marginalized communities. This Article identifies a significant wrinkle in this narrative: the problem of moral panics. The term “moral panic” originates in sociological literature and, simply stated, connotes disproportionate media and social condemnation of an identifiable deviant group or type of individual. I argue that moral panic influences modern lawmaking trends and identify two such trends in particular: panic over drag performers who purportedly groom and otherwise harm children, and panic over teachers and administrators who incorporate critical race theory into classrooms. Applying multiple models of moral panics, I argue that there is a strong case that laws restricting drag performance and teaching of critical race theory or other “divisive concepts” are frequently based in moral panic. Moral panic adds nuance to debates over the scope of First Amendment protections. To some extent, laws originating in moral panics vindicate critics of unfettered free speech, as the freedom to spread falsehoods (particularly those that are deemed of political salience) contributes to panic and fuels demand for panic-based restrictions. But when a moral panic’s influence goes so far as to prompt the enactment of restrictive laws, critics of strong speech protections may find a strong resource in the very doctrine they criticize. Laws restricting drag performances and critical race theory teaching are vulnerable to a variety of First Amendment challenges. Those who seek to reform permissive First Amendment doctrine therefore must account panic-generated laws and how strong speech protections may support challenges to these laws.

Download the article from SSRN at the link.

Preminger and Kugler on How the Right of Publicity Can Save Actors From Deepfake Arnageddon @MBKugler @NorthwesternLaw @BerkeleyTechLJ

Alice Preminger and Matthew B. Kugler, both of the Northwestern School of Law, are publishing The Right of Publicity Can Save Actors from Deepfake Armageddon in the Berkeley Technology Law Journal. Here is the abstract.

The entertainment industry is being rocked by the potential of deepfakes. It is now possible to have dead actors star in new productions, to revise casting choices months after filming, and to simulate extras electronically. The law has not caught up with this technological revolution. This Article traces the ways in which right of publicity law struggles to control this new form of identity exploitation. Specifically, it examines how traditional protections for expressive uses – key for allowing the depiction of real-world figures in biopics and historical dramas – are too broad when applied to digital replicas like deepfakes. A deepfake of a performer can appear to be the performer in a way that no 1990s CGI or makeup-enhanced stunt double possibly could, potentially serving as direct competition for them or deceiving audiences. This Article proposes changes to how right of publicity law treats expressive uses and also considers the problems raised current right of publicity licenses and the overbroad terms they regularly contain. In the past, the problems created by these broad licensing terms were limited by technology – one could only do so much with the film available. But now new canons of interpretation are needed to prevent the contracts being used to justify uses beyond what the contracting parties could have imagined.

Download the article from SSRN at the link.

Lidsky on Cheap Speech and the Gordian Knot of Reform @JournalSpeech

Lyrissa Barnett Lidsky, University of Florida College of Law, has published Cheap Speech and the Gordian Knot of Defamation Reform at 3 J. of Free Speech L. 79 (2023). Here is the abstract.

Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977. Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The 24-hour news cycle was not yet a thing, and most Americans still trusted the press. Note: This is an Accepted Manuscript of an article published in the Journal of Free Speech Law originally available online at: https://www.journaloffreespeechlaw.org/lidsky.pdf

Download the article from SSRN at the link.

Faisal on Journalistic Exemption in the Context of Criminal Conviction and Offenses Data Under the European Data Protection Laws @helsinkiuni

Kamrul Faisal, University of Helsinki, Journalistic Exemption in the Context of Criminal Conviction and Offenses Data Under the European Data Protection Laws. Here is the abstract.

News portals, social media, and other forums often publish criminal conviction and offenses information that may include personal information related to social position, work history, education, family data, etc. about individuals. Communicating information to the public is important for forming public opinions in every democracy, which is protected by the right to freedom of expression (RtFE). Nevertheless, such information may cause unlawful privacy harms to the data subjects, e.g. it may serve as an open-source intelligence that might lead to discrimination in getting a job and insurance, damaging the reputation, etc. In such situations, the Member States must be able to balance the privacy and publicity rights in question. While exercising the discretion of balancing, Member States provided exemptions differently, which led to the disharmonization of the European data protection laws.This paper aims to outline a harmonized balancing model between two competing fundamental human rights — the right to protect personal data (RtPPD) and the RtFE in the context of criminal conviction and offenses data. Article 85 of the General Data Protection Regulation (GDPR) allows the processing of such data for journalistic purposes until it is barred by data subjects’ privacy rights.This study found a harmonized approach to reconciling/balancing both rights within the European data protection laws. This study, first, identified that any processing purpose may qualify as journalistic purposes if that serves the general interest of the public, and the processing is strictly necessary. Second, this study outlined a model that can be used to harmonize the reconciling mechanism.

Download the article from SSRN at the link.

New Publication: Emma Perot, Commercialising Celebrity Persona: Intellectual Property Law and Practice (Bloomsbury, 2023) @hartpublishing

Newly published: Emma Perot, University of the West Indies, has published Commercialising Celebrity Persona: Intellectual Property Law and Practice (Bloomsbury/Hart, 2023). Here from the publisher's website is a description of the book's contents.

This book investigates the commercialisation of celebrity persona in the UK, New York, and California. Interviews with 68 practitioners across the advertising, merchandising, film, and video game industries provide insight on the differences in approaches across jurisdictions, as well as the similarities caused by non-legal factors. Furthermore, the book addresses the developments in technology, social media, and social norms that have made collaboration attractive to maintain favour with fans. Anyone who is interested in the multi-million dollar business of celebrities as assets will benefit from this book.

Discount Price: £68 Order online at www.bloomsbury.com – use the code GLR AQ7 to get 20% off.

Garon on An AI's Picture Painting a Thousand Lies: Designating Responsibility for Visual Libel @GaronDigital @NSULawCollege @JournalSpeech

Jon Garon, Shepard Broad Law Center, has published An AI’s Picture Paints a Thousand Lies: Designating Responsibility for Visual Libel at 3 Journal of Free Speech Law 425 (2023). Here is the abstract.

The visual depictions possible through various generative AI systems have advanced far past the point where a casual observer can determine whether an image is real or synthetic. Synthetic, fake videos have been used for disinformation in the Russian war against Ukraine, to produce countless instances of revenge pornography, to create artificial news anchors in South Korea, and to generate fictional social media influencers. These tools have both compelling commercial applications and potential for significant weaponization. Combined with the tendency of some generative AI systems to hallucinate or produce false information the AI claims to be accurate, the concerns over potentially libelous and harmful visual content will only grow. This article focuses on responsibility and liability for libelous publication of generative synthetic media. The article explores the legal consequences when an AI system itself generates false and harmful images to determine which parties, if any, would be liable for the damage caused by such publication. By providing this framework, the article also identifies the steps parties involved in the AI content production chain can take to protect individuals from the misuse of these systems.

Download the article from SSRN at the link.

Koningisor and Lidsky on First Amendment Equilibrium @ckoningisor @VirginiaLawRev @LidskyLidsky

Christina Koningisor, UC Law, San Francisco, and Lyrissa Barnett Lidsky, University of Florida College of Law, are publishing First Amendment Disequilibrium in volume 109 of the Virginia Law Review. Here is the abstract.

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes. Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance.

Download the article from SSRN at the link.

Botero Arcila and Griffin on Social Media Platforms and Challenges for Democracy, Rule of Law and Fundamental Rights @bea_botero @sciencespo

Breatriz Botero Arcila and Rachel Griffin, both of Institut d'Etudes Politiques de Paris (Sciences Po), have published Social Media Platforms and Challenges for Democracy, Rule of Law and Fundamental Rights. Here is the abstract.

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, examines risks that contemporary social media - focusing in particular on the most widely-used platforms - present for democracy, the rule of law and fundamental rights. The study focuses on the governance of online content, provides an assessment of existing EU law and industry practices which address these risks, and evaluates potential opportunities and risks to fundamental rights and other democratic values.

The full text is not available from SSRN. Here is a link to the EU Parliament page.

Kang on Why the Actual Malice Test Should Be Eliminated @UNM_Law @fsulawreview

John M. Kang, University of New Mexico School of Law, is publishing Why the Actual Malice Test Should Be Eliminated in volume 50 of the Florida State University Law Review (2023). Here is the abstract.

Under traditional common law, a plaintiff could recover damages for libel if she could prove that the defendant had published a factual statement about the plaintiff that tended to injure the plaintiff’s reputation. The plaintiff, at most, was required to show negligence to recover damages for libel. While the amount of money that any given plaintiff could recover in damages was uncertain, one thing was clear: the First Amendment would not protect libel. In 1964 in New York Times v. Sullivan, the Supreme Court radically upended this received view of libel as unprotected speech. According to Sullivan, if the plaintiff were a public official and the statement said about him were a matter of public concern, the plaintiff would have to prove “actual malice.” Under Sullivan’s actual malice test, the plaintiff faced the daunting task of having to prove that the defendant made the libelous statement knowing that it was false or with reckless indifference as to its truth or falsity. The actual malice test thus afforded extraordinary and unprecedented protection for political speech which was libelous. While the notion of protecting libel might seem morally objectionable, the Sullivan Court was adamant that doing so was essential to protect the right of political criticism. For the Sullivan Court argued that the actual malice test would quell the fear of self-censorship that speakers would likely suffer in the absence of the actual malice test. The Court was not alone in its support of the actual malice test. Since its inception in Sullivan, the actual malice test has been celebrated as perhaps the most monumental contribution to First Amendment jurisprudence. Going against the grain, this Article calls for the wholesale elimination of the actual malice test.

Download the article from SSRN at the link.

Mohr on The Irish Media and Comparative Perspectives on the Creation of the 1922 Constitution of the Irish Free State @UCDLawSchool

Thomas Mohr, Sutherland School of Law, University College of Dublin, has published The Irish Media and Comparative Perspectives on the Creation of the 1922 Constitution of the Irish Free State. Here is the abstract.

This article attempts to recover perceptions of the Constitution of the Irish Free State at the time of its creation through analysis of Irish newspapers published in 1922. The comparative analysis of contemporary perceptions is intended to serve as a counterweight to perceptions of this Constitution presented in scholarship written in the years after 1922 that have been heavily influenced by knowledge of subsequent events.

Download the article from SSRN at the link.

Albert on Imagining a Community: Obscenity's History and Moderating Speech Online @KendraSerra @Harvard_Law @YJoLT @[email protected]

Kendra Albert, Harvard Law School, has published Imagine A Community: Obscenity’s History and Moderating Speech Online at 25 Yale L.J. & Tech. Special Issue 59 (2023). Here is the abstract.

This essay walks through the history of the “community” in obscenity’s community standards doctrine, arguing that the Supreme Court’s debates and disagreements about how to regulate speech in that context presage more modern debates over content moderation online. They begin by sketching the community standards doctrine’s history, from the dozens of cases of the 1950s-70s to how networked technologies from 1989 to the early 2000s exacerbated earlier debates about which community’s standards matter, and how they should be applied. Albert then turns to what happened when the Justice Department ended prosecutions of pornography producers for obscenity, and how the shadow regulation of payment providers has come to replace the (flawed) legal doctrine.

Download the essay from SSRN at the link.

Uddin on Provocative Speech in French Law: A Closer Law at Charlie Hebdo @asmauddinesq @CathULaw @FIULAWREVIEW

Asma Uddin, Catholic University School of Law, has published Provocative Speech in French Law: A Closer Look at Charlie Hebdo in the Florida International University Law Review Symposium 2015. Here is the abstract.

At 11:30 a.m. on January 7, 2015, brothers Cherif and Said Kouachi, masked, dressed in black, and armed with Kalashnikov assault rifles, approached the offices of Charlie Hebdo, a satirical French magazine. They forced one of the magazine’s cartoonists to enter the code to the newsroom door. Upon entering the room, the men opened fire and killed the editor, Stephane Charbonnier, and four Charlie Hebdo cartoonists along with several others. The gunmen shouted, “We have avenged the Prophet Muhammad” and “God is Great” in Arabic as they called out the names of the journalists. The gunmen escaped by car. During the chase, Amedy Coulibaly, a friend of the two terrorists, killed a policewoman in Montrouge, and on January 9, took several people hostage at a kosher supermarket at Porte de Vincennes. He threatened to kill the hostages unless the Kouachi brothers were allowed to go free. At around 5:00 p.m. that day, the police stormed the supermarket and killed Coulibaly, while another operation launched at the same time killed the Kouachi brothers, who were hiding in a printing firm in Dammartin-en-Goele. Both individuals and the French government responded zealously to the attack on Charlie Hebdo. Social media became saturated with the hashtag #JeSuisCharlie, or #IAmCharlie, as French citizens and individuals abroad rushed to show solidarity with the cartoonists of Charlie Hebdo and the cause of freedom of speech. The French government commenced “aggressive enforcements” of Law No. 2014-1353 of November 13, 2014, an anti-terrorism law that was rarely used until the weeks prior to the attacks, against anyone who spoke out against the Charlie Hebdo cause. Among those prosecuted for their speech was Dieudonné M’Bala M’Bala, a French comedian, who was arrested for “defending terrorism” in a Facebook status that read, “Tonight, as far as I’m concerned, I feel like Charlie Coulibaly.” The statement is a combination of the slogan “Je suis Charlie” (“I am Charlie”) and “Amedy Coulibaly,” the name of the gunman who terrorized the kosher supermarket, and appears to imply sympathy with the terrorists. He was fined $37,000. Various commentators and scholars have pointed out the double standard in the French government’s treatment of speech, especially in the wake of the Charlie Hebdo attacks. The New Yorker noted that “[t]he juxtaposition of . . . the celebration of a magazine that routinely publishes cartoons considered blasphemous and offensive by many of the world’s Muslims and the muscular prosecution of a relentlessly provocative black comedian” made the hypocrisy glaringly obvious. Similarly, Jonathan Turley reflected in the Washington Post about the spontaneous rally in support of Charlie Hebdo after the attacks: “[O]ne could fairly ask what they were rallying around. The greatest threat to liberty in France has come not from the terrorists who committed such horrific acts this past week but from the French themselves, who have been leading the Western world in a crackdown on free speech.” Indeed, the French government has a history of using its speech laws to curtail the speech of journalists, comedians, celebrities, and ordinary citizens alike. That same tendency of restricting speech came into play in the wake of the Charlie Hebdo attacks, when the French government simultaneously punished critics for their speech and glorified Charlie Hebdo as a symbol of freedom of speech. At the core of the French double standard is its inconsistent distinction between protection and punishment of provocative speech. In Part I, this paper will look briefly at how international law treats provocation, in particular, Articles 19–20 of the International Covenant on Civil and Political Rights (ICCPR). Then, Part II will look at the ways French speech law embodies the aforementioned double standard because of its failure to adopt the international standard on provocation. The paper will conclude by advocating for a more uniform, more protective approach to speech—one that will bring French law into conformity with international law.

Download the article from SSRN at the link.

Walsh on Why Neutral Isn't Neutral: An Analysis of Misinformation and Sentiment in the Wake of the Capitol Riots @wvumediacollege

Daniel Walsh, Reed College of Media, has published Neutral Isn’t Neutral: An Analysis of Misinformation and Sentiment in the Wake of the Capitol Riots. Here is the abstract.

January 6th, 2021 was a significant moment in the history of the United States of America. Protestors stormed the Capitol building over the results of the 2020 presidential election in which Joseph R. Biden defeated incumbent president Donald J. Trump. The Capitol riots were partially incited by the presence of misinformation on social media and was an example of the power misinformation has. This study presented two questions. Question one pertains to the sentiment analysis of verified Twitter users and their sentiment towards Trump. Question two pertains to analyzing tweets from verified accounts for misinformation between the dates of January 6th, 2021 and January 13th, 2021. To answer these questions, a machine learning sentiment analysis was conducted on 13 randomly selected Twitter accounts with noted liberal and conservative political leanings to assess their sentiment towards Trump. The accounts were analyzed and then categorized as being either anti-Trump or Trump-neutral. Once the accounts were appropriately categorized a collection of their tweets mentioning Trump were documented to create a consecutive day sample to examine their reporting and analyze how misinformation differed between the two. The results of this study show that one, sentiment analysis is a useful tool for examining and categorizing tweets and their overall accounts based on their sentiments and two, that there was a notable difference in the spread of misinformation between the two categories.

Download the article from SSRN at the link.

Yoo on Network Slicing and Net Neutrality @pennlaw

Christopher S. Yoo, University of Pennsylvania Law School; Annenberg School for Communication; School of Engineering and Applied Science, has published Network Slicing and Net Neutrality Telecommunications Policy, Special Issue on "5G Policy and Beyond" as U of Penn, Inst for Law & Econ Research Paper No. 23-26. Here is the abstract.

Whether network slicing complies with the net neutrality rules currently in force in Europe and previously applicable in the U.S. presents a key issue in the deployment of 5G. In many ways, both regimes frame the issues in a similar manner, with the exceptions for reasonable traffic management and specialized services likely to play the most important roles. Both regimes also focus on similar considerations, including the requirement that measures be based on technical rather than business considerations and the distinction between measures aimed at improving the performance of the entire network or specific applications, although both distinctions are problematic in some respects. Both regimes also emphasize application agnosticism and end-user choice, with European law finding the former implicit in the latter. At the same time, European and U.S. law reflect some key differences: the regimes cover different types of entities, frame the issues in terms of nondiscrimination versus throttling and paid prioritization, take different positions on whether measures must be limited to temporary or exceptional circumstances, and place different weight on the impact of the rules on investment and on the relevance industry standards. The relatively undeveloped state of both legal regimes means that the ultimate answer must await enforcement decisions and actions by NRAs, and any subsequent judicial challenges to these decisions.

Download the article from SSRN at the link.

Satta on Shantay Drag Stays: Anti-Drag Laws Violate the First Amendment @mark_satta @waynestate

Mark Satta, Wayne State University, is publishing Shantay Drag Stays: Anti-Drag Laws Violate the First Amendment in the Georgetown Journal of Gender and the Law. Here is the abstract.

So far in 2023, at least twenty states have introduced bills aimed at limiting, eliminating, or otherwise suppressing drag performances. Several of those bills have turned into state laws. One of those laws has already been found to violate the First Amendment. This article explains why virtually any law aimed specifically at restricting, suppressing, or banning drag performances violates the First Amendment. The key reasons for this are as follows. First, drag performances are expressive conduct protected by the First Amendment. Second, drag performances generally do not fall into any uncovered category of speech, such as obscenity. Third, drag performances express viewpoints. Fourth, the Supreme Court has set an extremely high standard for permitting viewpoint discrimination—even for speech not covered by the First Amendment. Laws aimed at restricting drag performances do not meet this high standard because, among other reasons, such laws are not precisely tailored. Thus, laws that pick out drag performances for restriction over and above other forms of covered (or even uncovered) speech violate the First Amendment. After offering these arguments, this article examines how these First Amendment facts impact anti-drag laws in Tennessee, Arkansas, and Montana. These three case studies provide further evidence for the conclusion that anti-drag laws are generally unconstitutional by examining issues of overbreadth and vagueness, with an emphasis on how vague and overbroad anti-drag laws like these impermissibly chill the speech and expression of drag performers and of trans people.

Download the article from SSRN at the link.