Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, May 17, 2024

Chairwoman Rosenworcel Announces Leadership of the World Radiocommunication Conference Advisory Committee

From the FCC:

WASHINGTON, May 17, 2024—Federal Communications Commission Chairwoman Jessica Rosenworcel today announced her appointments of Jayne Stancavage and Kimberly Baum as Chair and Vice Chair of the Commission’s World Radiocommunication Conference Advisory Committee. The advisory committee was re-chartered on January 31, 2024 with the mission of providing the Commission with advice, technical support, and recommended proposals for the International Telecommunication Union’s World Radiocommunication Conference, which will be held in 2027.

“The next World Radiocommunication Conference provides an opportunity to promote U.S. leadership in the growing space economy, as well as in next-generation communications services. With so much at stake, we will be relying on this advisory committee to help develop strong proposals for the Conference,” said Chairwoman Rosenworcel. “Jayne and Kim have both served on several previous iterations of this committee, including in leadership positions at the working group level, and between them, have attended eleven World Radio Conferences. This depth of experience will prove invaluable to the committee as it develops recommendations.” Jayne Stancavage is the Vice President of Policy and Regulatory Affairs at Intel Corporation. She currently serves on the Board of Directors for both the United States Telecommunications Training Institute and the Open RAN Policy Coalition, and is also on the Global mobile Suppliers (GSA) Executive Committee. Ms. Stancavage received both her bachelor's and master's degrees in Political Science from the Massachusetts Institute of Technology. Kimberly Baum is the Vice President of Spectrum Engineering and Strategy at Eutelsat Group. Her previous positions in the satellite industry include policy and engineering roles at Echostar Corporation, SES Americom, Motorola, and Astrolink. Ms. Baum began her career at the FCC, where she was an electronics engineer in the Office of Engineering and Technology and later in the International Bureau. Ms. Baum received her B.S. in Electrical Engineering from the Virginia Polytechnic Institute and State University and her M.S. in Electrical Engineering from the George Washington University. The World Radiocommunication Conference Advisory Committee is chartered under the Federal Advisory Committee Act to provide to the FCC public views and recommendations in preparation for the next World Radiocommunication Conference. The World Radiocommunication Conference is a treaty-level forum held by the International Telecommunication Union (a United Nations agency) every three to four years in which countries decide on the allocation of frequency spectrum to allow the deployment or growth of all types of radiocommunication services such as wireless, broadcasting, satellite, and aeronautical services. Gregory Baker in the Office of International Affairs serves as the Designated Federal Officer to the Committee.

May 17, 2024 | Permalink

Tuesday, April 30, 2024

Dickinson on Beyond Social Media Analogues @StThomasLaw @StanfordLaw @nyulawreview

Gregory M. Dickison, St. Thomas University School of Law; Stanford Law School, has published Beyond Social Media Analogues at 99 NYU Law Review 109 (2024). Here is the abstract.

The steady flow of social-media cases toward the Supreme Court shows a nation reworking its fundamental relationship with technology. The cases raise a host of questions ranging from difficult to impossible: how to nurture a vibrant public square when a few tech giants dominate the flow of information, how social media can be at the same time free from conformist groupthink and also protected against harmful disinformation campaigns, and how government and industry can cooperate on such problems without devolving toward censorship. To such profound questions, this Essay offers a comparatively modest contribution—what not to do. Always the lawyer’s instinct is toward analogy, considering what has come before and how it reveals what should come next. Almost invariably, that is the right choice. The law’s cautious evolution protects society from disruptive change. But almost is not always, and, with social media, disruptive change is already upon us. Using social-media laws from Texas and Florida as a case study, this Essay shows how social-media’s distinct features render it poorly suited to analysis by analogy and argues that courts should instead shift their attention toward crafting legal doctrines targeted to address social media’s unique ills.

Download the essay from SSRN at the link.

April 30, 2024 | Permalink

Monday, April 22, 2024

New Publication: Global Perspectives on Press Regulation, Volume 2: Asia, America, the Americas and Oceania @BloomsburyBooks @paulwragg78

New publication now available: Global Perspectives on Press Regulation, Volume 2: Asia, Africa, the Americas and Oceania (Paul Wragg and András Koltay, eds., Bloomsbury, 2024).

In this ground-breaking two-volume set, world-leading experts produce a rich, authoritative depiction of the world’s press, its freedom, and its limits. The contributions in Volume 1 look at key jurisdictions in Europe; whereas Volume 2 goes beyond Europe to analyse the situation in key jurisdictions in Asia, Africa, the Americas and Oceania. Each volume can be used independently or as part of the complete set. This work will be incredibly valuable to policy makers and academics who seek to capture the global picture for the purposes of effecting change.

Feb 2024 | 9781509950393 | 368pp | Hbk | RRP: £90 Discount Price: £72 Order online at www.bloomsbury.com – use the code GLR AT5 to get 20% off! Sign up to our email list to receive updates about our new titles.

 

 

 

April 22, 2024 | Permalink

Wednesday, April 17, 2024

Post on Managing Student Expression: A Constitutional Theory of Student Free Speech Rights @YaleLawSch

Robert Post, Yale Law School, has published Managing Student Expression: A Constitutional Theory of Student Free Speech Rights. Here is the abstract.

Courts and commentators write as if the speech of K-12 students were endowed with full First Amendment protection, save in narrow circumstances when it is reasonably foreseeable that the speech will cause substantially disruption or materially interfere with the rights of others, when it is vulgar or lewd, when it involves school sponsored communication, or when it advocates for illegal drug use. But even the most superficial observation of student classroom expression reveals the fictional nature of this perspective. Student speech in classrooms is comprehensively and routinely subject to forms of regulation that violate the most elementary rules of what the Court has called “ordinary First Amendment standards.” Student classroom speech is controlled by official discretion; it is compelled; it is constrained by content and viewpoint discrimination; it is subject to prior restraints. The goal of this article is to offer a constitutional account of student speech that can explain the contours of its actual regulation. Ordinary First Amendment standards are designed to protect participation in what the Court has called “the market of public opinion.” This market must remain perpetually free from state control so that, in the Court’s words, government authority can “be controlled by public opinion, not public opinion by authority.” The goal is to ensure that the state remain continuously responsive to “that public opinion which is the final source of government in a democratic state.” Often government responds to popular will by creating institutions charged with implementing specific tasks. Government creates courts to apply justice or agencies to administer the social security system. It would be counterproductive in such circumstances to insist on the open-endedness that ordinary First Amendment standards are designed to protect. Instead mission-driven state institutions must effectively control the speech of those within the scope of their authority so that they can achieve their assigned objectives. The article also evaluates how courts conceive the nature, scope, and force of school managerial authority. That authority receives highly deferential review insofar as students seek to speak qua students. But insofar as students seek to speak qua citizens, the paper assesses the variables and doctrine used by courts to weigh the prerogatives of school managerial authority against the free speech rights of students. The article also evaluates how courts conceive the nature, scope, and force of school managerial authority. That authority receives highly deferential review insofar as students seek to speak qua students. But insofar as students seek to speak qua citizens, the paper assesses the variables and doctrine used by courts to weigh the prerogatives of school managerial authority against the free speech rights of students. Of particular concern in the past several years has been the efforts of schools to control off-campus student speech that might potentially undermine school functioning. The paper argues that the general framework of speech regulation within managerial government organizations offers a coherent, consistent, and convincing way to explain the complexities of our actual constitutional jurisprudence of student speech. It seeks to substitute that cogent perspective for the fictional appeals to fictional rights that too often dominate contemporary scholarly and judicial discussion of student speech.

Download the article from SSRN at the link.

April 17, 2024 | Permalink

Tuesday, April 16, 2024

Hasen on Moving From Bloggers In Pajames To the Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection @rickhasen @UCLA_Law @sjquinney

Richard L. Hasen, UCLA School of Law, is publishing From Bloggers in Pajamas to The Gateway Pundit: How Government Entities Do and Should Identify Professional Journalists for Access and Protection in The Future of Press Freedom: Democracy, Law & the News in Changing Times (RonNell Anderson Jones and Sonja R. West, eds., Cambridge University Press) (forthcoming, 2025). Here is the abstract.

This paper examines how government entities determine who is a journalist to allocate resources under conditions of scarcity and to assure that the press can conduct their functions without undue government regulation and interference. Using a new dataset of 172 laws, rules, and procedures that different government entities have used to define the press, it describes the most common tests government entities use for identifying journalists and compares them to each other. Most of the definitions appear aimed at identifying the class of professionals who regularly gather, report, and disseminate news. The paper then describes the relatively rare, reported litigation around these journalist-defining rules, teasing out the potential dangers of relying on particular definitions of journalists. Much of the litigation easily distinguishes between professional and non-professional journalists, and a few have dealt with the exclusion of journalists for permissible reasons, such as disruptive behavior. But not every issue is easy. Using the example of litigation over Maricopa County, Arizona’s decision to exclude a faux journalist for The Gateway Pundit from an area where ballots were being tabulated following the 2022 elections, It focuses particularly on the line between unconstitutional viewpoint discrimination and permissible extension of the press exemption only to those who engage in legitimate professional journalism. The paper then makes four normative recommendations about the tests government entities should use to define journalists. First, government entities should have explicit and meaningful standards for press exceptionalism. Second, most press exceptionalism should be limited to professional journalists who regularly produce news stories or commentary. Third, press exceptionalism should not turn the type of technology used to communicate. Fourth, government entities should continue to have the power to grant press exceptionalism to “bona fide correspondents of repute in their profession” so long as they do not engage in viewpoint discrimination.
Download the essay from SSRN at the link.

April 16, 2024 | Permalink

Thursday, April 4, 2024

Norton on Reinvigorating the Press Clause Through Negative Theory @ColoLaw

Helen L. Norton, University of Colorado Law School, has published Reinvigorating the Press Clause Through Negative Theory as part of the Knight First Amendment Institute, December 2023. Here is the abstract.

What work could an independent Press Clause do apart from the work already done by the Speech Clause? This question requires us to think about why and how the press is different from other speakers for First Amendment purposes—more specifically, what distinct functions does the press perform and what distinct vulnerabilities does the press possess? In terms of distinct press functions, the press serves the public through its watchdog, educator, and proxy roles. These functions, in turn, explain the press’s distinct vulnerabilities to government retaliation: because the press’s primary purpose is to scrutinize the government for the public’s benefit, the government has long perceived the press as inherently threatening to its political self-interest. Moreover, changes in the technological and political environment have aggravated threats to journalists’ physical safety, intensifying their vulnerability still further. Rooted in distrust of the government’s self-interested efforts to punish and thus silence the press, “negative” First Amendment theory has long offered an important tool for understanding the Press Clause. And negative theory is now more valuable an interpretive tool than ever, as press organizations and individual journalists are increasingly vulnerable to the government’s retaliation. Among other things, negative theory can help us understand the Press Clause as providing an especially robust shield from the government’s retaliation—a shield different from that offered the public more generally by the Speech Clause precisely because of the press’s distinct functions and vulnerabilities. More specifically, directing judicial attention to the reasons to distrust the government’s adverse treatment of the press can reinvigorate Press Clause doctrine by informing courts’ choices of legal rules and by informing their application of those rules once chosen.
Download the article from SSRN at the link.

April 4, 2024 | Permalink

Wednesday, March 27, 2024

Smith on Social Media Regulation in the Wake of 303 Creative v. Elenis @msmith750

Michael L. Smith, St. Mary's University School of Law, has published Social Media Regulation in the Wake of 303 Creative v. Elenis. Here is the abstract.

The Supreme Court capped its turbulent October 2022 term with its ruling in 303 Creative v. Elenis, in which it held that Colorado couldn’t apply its anti-discrimination law to penalize a website business’s refusal to provide wedding websites to same-sex couples. The opinion met with swift criticism by commentators who argued that the Court’s ruling minimized the dignitary harms of those subjected to discrimination by business owners. Other critics argued that the ruling could be applied to permit other forms of discrimination—including discrimination on the basis of sex or race. How widely the Court’s ruling may end up reaching depends in large part on whether businesses’ conduct is deemed to be expressive and therefore protected by the First Amendment. This issue was stipulated in the 303 Creative litigation, and therefore remains largely unsettled in a modern era of public image and social media presences. The Court, however, may clarify the nature of expressive conduct in reviewing the scope of states’ abilities to restrict social media platforms’ ability to ban users and to limit the content and scope of user-posted content. Florida and Texas each enacted laws restricting social media platforms, and the Eleventh and Fifth Circuit Courts of Appeal reached opposing conclusions on whether these restrictions are permissible under the First Amendment. These cases, Moody v. NetChoice and NetChoice v. Paxton, are pending before the Supreme Court, and offer an early opportunity to clarify the scope and nature of protected expressive conduct. Ironically, many commentators critical of 303 Creative appear to support the Eleventh Circuit’s ruling that social media companies engage in expressive conduct when restricting users—a ruling that may well end up expanding the scope of 303 Creative’s impact should the Supreme Court take a similar approach. This article explores this inconsistency, and traces its origins to the absolutist treatment of rights on display in 303 Creative and in the NetChoice cases.

Download the article from SSRN at the link.

March 27, 2024 | Permalink

Wednesday, March 13, 2024

Weisbord and Bondurant on Oscar Law @RutgersLaw @AlaLawReview

Reid K. Weisbord and Jordan Bondurant, both of Rutgers Law School, are publishing Oscar Law in the Alabama Law Review. Here is the abstract.

In most vocational fields, trade associations promote their industry’s common business interests by performing various community-building functions, including the establishment of awards for outstanding professional accomplishments. In the entertainment industry, however, the elite trade associations (known as academies) are almost exclusively devoted to the presentation and production of achievement awards, a ritual that has evolved into its own cottage industry. By televising the year’s best performances in a stylized media format now firmly etched in the American cultural zeitgeist, entertainment academies promote their membership’s shared economic interests in stimulating consumer demand for their respective performing arts industries. This Article breaks new ground by examining entertainment awards from a legal perspective. It begins by asserting two related claims: first, that the ritual presentation of elite entertainment awards has matured into its own distinct industry which now represents an important microeconomy generating hundreds of millions of dollars in direct annual turnover; and, second, that the law plays a singularly pivotal role in protecting and regulating the entertainment awards industry. The Article then develops the latter claim into a descriptive account of “Oscar Law” by identifying the legal doctrines, principles, and regulations relevant to this unique field. The Article’s descriptive account presents a cross-cutting survey of intersections between law and the entertainment awards industry. Those intersections implicate matters of antitrust, contracts, corporate governance, federal broadcasting regulation, intellectual property (copyright and trademark), media, nonprofit tax exemption, property, income tax, and trespass, among other legal subfields. The resulting analysis represents the first comprehensive, rigorously sourced, scholarly legal examination of the entertainment awards industry, with a particular focus on the most elite awards: Oscars, Emmys, Grammys, Tonys, and Golden Globes.

Download the article from SSRN at the link.

 

See also Hollywood's Legal Secrets: Oscar Law Study Examines Entertainment Awards

NB: There currently seems to be a problem retrieving this article from SSRN. I have notified them.

March 13, 2024 | Permalink

Monday, February 5, 2024

Lidsky on Untangling Defamation Law: Guideposts for Reform @UFLaw @MoLRev

Lyrissa Barnett Lydsky, University of Florida College of Law, is publishing Untangling Defamation Law: Guideposts for Reform in volume 88 of the Missouri Law Review. Here is the abstract.

This article, which is based on a keynote address given at the 2023 Missouri Law Review Symposium, addresses the past and predicted future of defamation law in hopes of galvanizing needed reforms. As a necessary backdrop, this article explains why today’s defamation law remains so complex, tracks reforms over the last half-century, and explains why the common law of defamation has not adapted adequately to the challenges posed by cheap speech in the digital era. The article then turns to assessing the complaints of defamation law’s most prominent would-be reformers and finds them to rest on an incomplete understanding of how defamation law’s complex pieces contribute to the whole. Finally, after identifying some important barriers to defamation law reform, the article provides guideposts for the reform process.

Download the article from SSRN at the link.

February 5, 2024 | Permalink

Smith on the Criminally Complicated Copyright Questions About Trump's Mugshot @CathaySmith @UMontanaLaw @StanLRev

Cathay Smith, University of Montana School of Law, is publishing The Criminally Complicated Copyright Questions About Trump's Mugshot in volme 76 of the Stanford Law Review Online. Here is the abstract.

Former-President Donald Trump surrendered at the Fulton County jail in Georgia on August 24, 2023, where he was booked on 13 felony counts and photographed for a mugshot. The mugshot shows Trump dressed in a navy-blue suit jacket, white shirt, and red tie. His face is slightly angled to one side, his chin tucked, his mouth pouting, and his eyes glaring at the camera. Trump’s mugshot went viral on social media and news outlets, and began to appear on merchandise for sale, such as mugs, t-shirts, hats, and even toilet paper rolls. Trump’s own campaign started using the mugshot on campaign merchandise for sale, often with the words “Never Surrender” or “2024” next to the image. His campaign also publicly threatened to “come after” any third-parties that use the mugshot without authorization. But who owns Trump’s mugshot under copyright law? And who can use the mugshot? This essay answers those questions and, in the process, explores complicated copyright concepts of authorship, originality, government edicts, free speech, and fair use.

Download the essay from SSRN at the link.

February 5, 2024 | Permalink

Monday, January 29, 2024

Burnworth on Section Three's Chilling Efect on Free Speech @UMassAmherst

Justin Burnworth, University of Massachusetts, Amherst, has published Section Three’s Chilling Effect on Free Speech. Here is the abstract.

Professors William Baude and Michael Paulsen recently announced their article, The Sweep and Force of Section Three, arguing that Section Three of the Fourteenth Amendment disqualifies former President Donald Trump from holding office given his participation in the attempted overthrowing of the 2020 presidential election. The scholars briefly acknowledge the inevitable clash between Section Three and the First Amendment but dismiss the issue as either “satisfied” under modern liberal free speech doctrine or in the case of actual conflict they argue that “free speech principles must give away.” While the article is undoubtedly one of the most vital pieces of legal scholarship written in recent memory—the general apathy towards free speech principles as an integral core protection of the Constitution is troubling. This article sets forth the potential clashes between free speech principles and Section Three. It argues that the principles cannot simply “give away” for every Section Three claim of disqualification. First, the proper way to understand the First Amendment and Section Three is that the former limits the scope of latter. The passage of Section Three did not strip away the free speech principles enshrined in the First Amendment. Second, individual rights guaranteed in the Constitution must take a preferred position to governmental powers when the two clash. If an individual right can be indirectly usurped by a later governmental power, it renders the entire process of protecting rights superfluous. Third, the United States has a history and tradition of the political majority restricting the free speech of the political minority if given the opportunity to do so. The fear of a politically motivated abuse of Section Three disqualification justifies ensuring that such a powerful tool does not go unchecked. Modern free speech doctrine is the proper instrument to ensure that no elected official is disqualified from office simply because they critique the policy preferences of those in power—a foundation that a healthy democracy is built on. Fourth, the Supreme Court ruled that elected officials enjoy the same free speech protections of that of a private citizen. Therefore, a Section Three claim that an elected official “engaged” in insurrection—through their speech—must first adhere to the Brandenburg standard to determine whether the inflammatory speech was likely to incite imminent lawless action and is therefore not protected under the First Amendment. Lastly, while the courts have yet to directly adopt the Baude and Paulsen argument, indirectly, they have subverted the First Amendment by misapplying the Brandenburg rule. Both the District Court in Colorado and the Supreme Court of Colorado utilized a backwards-looking approach to understand the context of Trump’s speech. While this approach is appropriate in other areas of speech—such as true threats—it violates the imminence requirement in incitement cases and has never been used by the Supreme Court in any case when it applied Brandenburg.

Download the article from SSRN at the link.

January 29, 2024 | Permalink

Thursday, January 18, 2024

Smith on Whether Editing Classic Books Is a Threat to the Public Domain @CathaySmith @umontanalaw @VirginiaLawRev

Cathay Smith, University of Montana School of Law, is publishing Editing Classic Books: A Threat to the Public Domain? in volume 110 of the Virginia Law Review Online. Here is the abstract.

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain copyright protection by adding sufficient original expression to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because derivative works can foster creativity, disseminate culture and knowledge, and allow original works to reach new audiences. However, this right can also be misused and misapplied. Specifically, while copyright in derivative works only extends to the new materials added to an underlying work, there are instances where overreaching copyright claims and ambiguous lines between the original work and the derivative work can have the practical effect of extending exclusive rights in the original underlying works. This Essay examines editors that have claimed copyright in new illustrations or new editions of classic books, and considers the potential to create copyrightable derivative works when editors revise and publish new editions of classic books that remove cultural, ethnic, and gender stereotypes. It argues that copyright law must strike a balance to ensure follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern audience and readership, but it must also guard against the inadvertent consequence of diminishing the public domain of classic books.

Download the article from SSRN at the link.

January 18, 2024 | Permalink

Monday, January 8, 2024

Seshadri on the Press Council of India Act @sjclblr

Supraja Seshadri, St. Joseph's College of Law, has published Press Council of India Act. Here is the abstract.

Media houses in India have held a place of importance since time immemorial. The relevance of it may have been noticed in recent history, but it always played an important. The media is considered to be the fourth pillar of the Constitution after the Legislative, Executive and Judiciary. For a profession that has gained much momentum in recent years, it is necessary to keep a check on the powers and functions of such professionals in this field. Regulation is necessary as it ensures a smooth flow of business and acts as a deterrent at the same time. Deterrence, by means of punitive measures and smooth flow by means of code of conduct, rules of business, setting up for various committees and commissions, etc. This Act was legalised in the year 1978, right after the 1975-77 emergency. That emergency can be considered as a foundation stone for today’s provisions as seen under this Act. It is necessary to understand that the rights enshrined in our Constitution are not absolute and that they may be curbed in times of need. How can they be curbed and if curbed, what is the legal machinery used to regulate it? This article aims to answer this question by explaining in detail about this Act. To understand this Act, a brief travel in history is essential. This Article will walk the reader through the brief history of media, and media in India and touch up on the emergency times and what led to the present provision. This Act also aims to give the reader an understanding of the exhaustive chapters in this Act.

Download the article from SSRN at the link.

January 8, 2024 | Permalink

Hanley on America's Fourth Estate: History and Law @danielahanley @openmarkets

Daniel Hanley, Center for Journalism and Liberty, has published America’s Fourth Estate: History and Law.

Here is the abstract.

This Article details the extensive history of federal media regulation in the United States. Examining historic media regulation helps us see what robust public policy is possible and makes clear that, like all markets, the media industry is constructed by the state, and the practices that corporations use to compete and how they compete are constructed from the law. Critically, this Article illuminates that antimonopoly has been a fundamental aspect of much of the federal regulation since the founding of the United States and that such policies were meant to support and structure the news industry in the public interest, specifically to foster a news industry that is deconcentrated, capable of providing diverse opinions, able to hold the government and other powerful actors accountable to the rule of law, and maintain as wide a distribution system as possible so that the public can access information.

Download the article from SSRN at the link.

January 8, 2024 | Permalink

Saturday, December 23, 2023

Smith on Editing Classic Books: A Threat to the Public Domain? @CathaySmith @umontanalaw

Cathay Smith, University of Montana School of Law, is publishing Editing Classic Books: A Threat to the Public Domain? in volume 109 of the Virginia Law Review Online. Here is the abstract.

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain copyright protection by adding sufficient original expression to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because derivative works can foster creativity, disseminate culture and knowledge, and allow original works to reach new audiences. However, this right can also be misused and misapplied. Specifically, while in derivative works only extends to the new materials added to an underlying work, there are instances where overreaching copyright claims and ambiguous lines between the original work and the derivative work can have the practical effect of extending exclusive rights in the original underlying works. This Essay examines editors that have claimed copyright in new illustrations or new editions of classic books, and considers the potential to create copyrightable derivative works when editors revise and publish new editions of classic books that remove cultural, ethnic, and gender stereotypes. It argues that copyright law must strike a balance to ensure follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern audience and readership, but it must also guard against the inadvertent consequence of diminishing the public domain of classic books.

Download the article from SSRN at the link.

December 23, 2023 | Permalink

Monday, December 11, 2023

Wright on Slightly More Than Two Cheers For Sneaky Private Investigations Into Questionable Business Operations

R. George Wright, Indiana University McKinney School of Law, has published Slightly More Than Two Cheers For Sneaky Private Investigations Into Questionable Business Operations. Here is the abstract.

Journalists and interest groups often investigate, more or less clandestinely, the business practices of a particular corporate enterprise. Their aim in doing so is to document and graphically publicize illegal or controversial such practices. How the criminal and civil law should respond to such undercover investigations is the focus of the inquiry below. Ultimately, three full-throated cheers for such private-party investigations is excessive. The investigations in question may, in some cases, run up against, merely for example, limits set by valuable personal privacy rights. A mere two cheers response, however, is insufficient. The free speech-related and other public interest value of such investigations is collectively too great for only two cheers. Two and a half cheers may then seem an apt accommodation of the conflicting interests at stake. Herein, though, a slight muting of the two and a half cheers is endorsed. This final adjustment is strategically intended to encourage investigators to minimize any unnecessary harms caused by their valuable investigation and reporting in the public interest.

Download the article from SSRN at the link.

December 11, 2023 | Permalink

Antoniou on The MeToo Movement and the Public Interest Defence in Libel @alexkantoniou @Uni_of_Essex

Alexandros Antoniou, Universty of Essex School of Law, is publisng The MeToo Movement and the Public Interest Defense in Libel</a in volume 34 of the Entertainment Law Review. Here is the abstract.

The article examines the first reported case in which an individual who was sexually assaulted and named their perpetrator successfully relied on the defence of public interest under section 4 of the Defamation Act 2013. The analysis explores the significance of this rare ruling for survivors of sexual abuse against the backdrop of the MeToo movement, considers its limitations and spotlights the financial challenges that sexual assault victims may face when defending defamation actions.

Download the essay from SSRN at the link.

December 11, 2023 | Permalink

Tuesday, November 21, 2023

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.

November 21, 2023 | Permalink

Saturday, October 28, 2023

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.

October 28, 2023 | Permalink

Monday, October 23, 2023

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 exceptionalismWhat 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 functionHow 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 democracyWhat 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 frameworksAs 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.

October 23, 2023 | Permalink