Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Sunday, August 14, 2022

Bowman and Gelbert on Responding to Hate Speech: Counterspeech and the University @Prof_KBowman @KGelber @michiganstateu @UQ_News

Kristine L. Bowman, Michigan State University, and Katharine Gelber, University of Queensland, have published Responding to Hate Speech: Counterspeech and the University at 28 Virginia Journal of Social Policy and the Law 248 (2021). Here is the abstract.

How should universities--and specifically university presidents--respond to hate speech on their campuses? Most responses to this question revolve around whether the hate speech should be restricted, but we take a different approach. Instead offocusing on the hate speech, we focus on what a university leader can say to disrupt the harm that the hate speech causes, while also allowing the hate speech to proceed in line with First Amendment protections and principles. Drawing on speech act theory from philosophy of language, we argue that a university leader's silence in these situations whether literal or in the form of ineffective counterspeech is not a neutral response. Such silence accommodates injustice. However; a leader who engages in counterspeech can challenge the hate speech's legitimacy and prevent it from resetting the terms of debate in such a way that the discrimination in the hate speech becomes normalized, even if this counterspeech cannot undo the harm entirely. Thus, the kind of counterspeech that university leaders undertake matters a great deal. If it challenges the implied authority of the speaker and seeks to counter the inegalitarian norms the hate speech embodies, counterspeech can mitigate the harms of hate speech and simultaneously enhance the free speech environment on campus. This Article thus does three things. It contributes important insights to the specific literature about free speech on campus, it contributes more widely to the literature about free speech and harmful speech, and it suggests a way of systematically refraining thinking about the boundaries between free speech and harmful speech in campus debates.

Download the article from SSRN at the link.

August 14, 2022 | Permalink

Friday, August 12, 2022

Reid on The Incoherence of Common Carriage Law @blakereid @ColoLaw

Blake E. Reid, University of Colorado Law School, has published The Incoherence of Common Carriage Law as U of Colorado Law Legal Studies Research Paper No. 22-20. Here is the abstract.

As debates over the regulation of “Big Tech” Internet platforms— social media, search, and more—have swirled, scholars, advocates, and policymakers have increasingly focused their attention on the law of common carriage. Common carriage is increasingly invoked as a talisman—particularly around proposals from conservative scholars, policymakers, and judges aimed at purported political discrimination by platforms—to justify the imposition of non-discrimination rules. This Article questions the coherence of applying common carriage law to Internet platforms. It explains that the talismanic invocation of “common carriage” routinely conflates distinct questions around the designation of common carriers, the imposition of common carriage rules, and the First Amendment limitations thereon. Juxtaposing contemporary common carriage scholarship against a survey of the post-Civil War history of common carriage regimes in telecommunications law, it explains that, contrary to popular assertion, common carriage law encompasses a diverse collection of widely differing and difficult- to-reconcile classifications of “carriers,” “carriage” rules, and First Amendment doctrine. Together, these classifications, rules, and doctrine provide an uncertain and incoherent base for developing and assessing regulatory regimes for Internet platforms. Applying this novel three-part framework, this Article makes a case for an alternative, context-sensitive approach to Internet regulations that evaluates the designation of carriers, the imposition of rules, and the role of the First Amendment on a granular basis that considers the vast degree of diversity that manifests across the Internet’s layer stack.

Download the article from SSRN at the link.

August 12, 2022 | Permalink

Monday, August 8, 2022

Giovanella on From the "Right to Delisting" to the "Right to Relisting" @fede_giovanella

Federica Giovanella, University of Udine, Dep. of Legal Sciences, is publishing From the 'Right to Delisting' to the 'Right to Relisting' in Medialaws: Revista di diritto dei Media. Here is the abstract.

The Court of Justice’s Google Spain decision introduced a “right to delisting” that recognizes data subjects’ right to have search results for their names delisted. The lack of clarity characterizing the judgment has paved the way to millions of deindexing requests to search engines as well to a number of judicial cases in which courts strive in finding a fair balance between the rights at stake. More recently, dealing with the issue of delisting data relating to offences and criminal convictions, the CJUE seemed to introduce a new way to deal with dereferencing, namely: relisting, that is to adjust the list of results to reflect the current legal position of the data subject. The paper aims at understanding if relisting would make up for the shortcomings of the delisting. Building on existing literature and analysing recent legislation, the paper reaches the conclusion that relisting would be a better and fairer solution than delisting and that its adoption should be supported.

Download the article from SSRN at the link.

August 8, 2022 | Permalink

Sunday, August 7, 2022

Young on Permanent Injunctions in Defamation Actions @hilaryanyoung @UNBLaw

Hilary Young, University of New Brunswick, Fredericton, Faculty of Law, has published Permanent Injunctions in Defamation Actions. Here is the abstract.

In the internet era, permanent injunctions prohibiting defamatory speech are increasingly being sought and ordered following a finding of liability. This may seem unproblematic since a court will have found particular speech to be unlawful – defamatory and likely false. However, there are good reasons to be cautious in permanently enjoining defamatory speech. This article applies first principles of equitable relief to the modern defamation context. It shows how courts have recognized a de facto test for permanent injunctions in defamation cases based on a misinterpretation of the case law. This doctrinal confusion is enough reason to reconsider the approach to permanent injunctions in defamation cases, but societal changes are also relevant. Communications technology is an obvious change – one that makes injunctions potentially more useful in preventing additional reputational harm. But society’s view of the importance of free speech relative to reputation has changed too. The article proposes a number of guidelines and principles for permanent injunctive relief in defamation actions. Most relate to ensuring that an injunction is actually necessary to prevent future reputational harm, while some are more innovative and perhaps controversial, such as requiring a likelihood of serious harm if the injunction isn’t granted, and not enjoining comment, as opposed to statements of fact. It is also a plea to lawyers and especially judges not to be too quick to seek or impose injunctions simply because defamatory speech is published online.

Download the article from SSRN at the link.

August 7, 2022 | Permalink

Tuesday, August 2, 2022

FCC, NTIA Sign Memorandum of Understanding on Spectrum Coordination

The FCC and the NTIA have signed a Memorandum of Understanding On Spectrum Coordination. Links to the press release and PDFS and Word versions of the MOU are available here. 

August 2, 2022 | Permalink

Monday, August 1, 2022

Anderson and Kidd on Market Failure and Censorship in the Marketplace of Ideas @DukeLaw @MC_Law

John P. Anderson, Mississippi College School of Law, and Jeremy Kidd, Drake University Law School, have published Market Failure and Censorship in the Marketplace of Ideas. Here is the abstract.

Use of the familiar metaphor of the exchange of ideas as a “marketplace” has historically presumed that free and uninhibited competition among ideas will reliably arrive at truth. But even the most fervent economic free-market advocates recognize the possibility of market failure. Market failure is a market characteristic (e.g., monopoly power) that precludes the maximization of consumer welfare. The last few years have witnessed increased calls for censorship of speech and research pertaining to a variety of subjects (e.g., climate change; COVID-19 sources and treatments; and viewpoints concerning race, gender, and sexual orientation) across a variety of fora. The consistent refrain in favor of this censorship is that the spread of false or misleading information is preventing access to or distorting the truth and thereby inhibiting social progress: undermining democracy, fomenting bigotry, costing lives, and even threating the existence of the planet. Though on their face these calls for censorship appear anti-liberal and contrary to the marketplace model, they can be made consistent with both if they are understood as a response to a market failure in the marketplace of ideas. While recent calls for censorship have not been justified expressly as a response to market failure, reframing the debate in these terms may prevent parties on both sides of the issue from engaging at cross purposes by locating the debate within an otherwise familiar model. The Article proceeds as follows: Part I offers examples of recent calls for (and efforts at) censorship in the market of ideas concerning a variety of subjects and forums. Part II articulates a model of the marketplace of ideas that jibes with contemporary economic concepts, defines its components (e.g., sellers, buyers, intermediaries, etc.), considers the possibility of associated market failures, and highlights some common fallacies in the application of the concept of market failure more broadly. Part III explores the principal philosophical justifications for the utility of freedom of expression, focusing on the arguments articulated in John Stuart Mill’s classic, On Liberty. Part IV argues that, in light of these arguments (and taking into account contemporary critiques), the threat of false and misleading expression does not reflect market failure in the marketplace of ideas as modeled here. To the contrary, Part V argues that the ease with which recent public and private efforts at censorship have succeeded may itself reflect a market failure warranting correction—if not through legislation or the courts, then by social sanction and the court of public opinion.

Download the article from SSRN at the link.

August 1, 2022 | Permalink

Friday, July 29, 2022

Contreras and Fagundes on Life Story Rights, Modularity, and Ownership of the Self @contreraslegals @Dave_Fagundes

Jorge L. Contrerars, University of Utah College of Law, and Dave Fagundes, University of Houston Law Center, have published Based On a True Story: Life Story Rights, Modularity and Ownership of the Self. Here is the abstract.

From Richard III (1594) to King Richard (2021), dramatic productions over the centuries have depicted real-life people and events. And since the early days of Hollywood, producers have paid top dollar to secure “life story rights” from the subjects of these works. There’s only one problem: Life story rights don’t exist. Despite popular misconceptions, neither copyright, trademark, privacy nor the right of publicity give individuals the exclusive right to exploit facts concerning their lives. On the contrary: in the United States, First Amendment considerations severely limit any legal constraint on expressive speech, including dramatic depictions. So why do production companies pay amounts that are sometimes in the millions to acquire these “rights”? Drawing on interviews with practitioners across the entertainment industry, we solve this puzzle by identifying the three principal components of life story rights: the subject’s waiver of defamation, privacy and other legal claims (waiver), guaranteed access to the subject and associated materials (access), and the subject’s agreement not to work on any related project (exclusivity). The modularization of these distinct jural relations under the rubric “life story rights” is the result of successful private ordering within a fast-moving and highly competitive industry. We find three underlying motivations for the bundling of these relations under the label of life story rights: private ordering, transactional efficiency (including reduced information costs, litigation avoidance and signaling), and effectuation of the lay intuition that individuals “own” facts about their lives. And while we applaud the efficiency gains that have been achieved through the modularization of life story rights, we caution courts and legislatures against continuing to expand the boundaries of formal property interests to encompass personal experiences and events.

Download the article from SSRN at the link.

July 29, 2022 | Permalink

Wednesday, July 27, 2022

Ardia on Beyond the Marketplace of Ideas: Bridging Theory and Doctrine to Promote Self-Governance @dsardia

David S. Ardia, University of North Carolina, Chapel Hill, School of Law, has published Beyond the Marketplace of Ideas: Bridging Theory and Doctrine to Promote Self-Governance at 16 Harvard Law & Policy Review 101 (2022). Here is the abstract.

No theory dominates both public and judicial understanding of the First Amendment quite like the “marketplace of ideas.” While faith in free competition among ideas holds tremendous appeal, as an organizing theory for the formulation of First Amendment doctrine it has proven to be deeply problematic. The theory rests on an overly simplified account of public discourse, treating speech as a commodity that can be allocated through market-style transactions, and it has come to embody an extreme version of libertarian economic thinking that is undermining the very democratic processes the First Amendment was intended to serve and strengthen. The belief that public discourse takes place within a self-regulating market that needs only the presence of more speech to produce “truth” has not held up to empirical scrutiny. Indeed, social scientists who study the impact of the Internet, social media, and other forms of digital information sharing on our public sphere paint a disturbing picture of the health of American democracy. Our current media ecosystem produces too little high-quality information; we tend to be attracted to information that confirms our existing biases about the world and to share this information with little regard for its veracity; and there are an increasing number of actors who seek to leverage these vulnerabilities to distort public discourse and undermine democratic decision-making. This article applies the insights of constitutional structuralism to argue that the First Amendment was intended to play a vital role in the American constitutional system: facilitating self-governance by ensuring that citizens are capable of participating in the deliberative processes that are essential to a representative democracy. With self-governance as the touchstone, it lays out three principles that should guide the development of First Amendment doctrines. First, we need to move beyond the idea that the First Amendment’s only function is to enshrine free market ideology. Second, the First Amendment does not bar the government from addressing market failures in the actual markets in which communication takes place, especially when those failures undermine the public’s capacity for self-governance. Third, the capacity for self-governance turns, at least in part, on whether the public has the information it needs to effectively evaluate issues of public policy. This article proposes a number of ways to bridge theory and doctrine to promote self-governance, including using antitrust law to address concentrated economic power in communication markets, expanding and enforcing privacy and consumer protection laws to create more competition among speech platforms, and initiating programs that support journalism and other knowledge institutions within society. It also argues that as an influential participant in public discourse, the government should have an obligation to wield its influence in ways that support self-governance, not undermine it by misleading its citizens or starving them of the information they need. I therefore propose two new rights that should be recognized under the First Amendment: a right not to be lied to by the government when it undermines the public’s capacity for self-governance and a right to information in the government’s possession that can assist the public in its efforts to understand and evaluate issues of government policy.

Download the article from SSRN at the link.

July 27, 2022 in Food and Drink | Permalink

Douglas on Publication of Defamation by Encouraging Third Party Comments on Social Media

Michael Douglas, The University of Western Australia Law School, has published Publication of Defamation by Encouraging Third Party Comments on Social Media at 138 Law Quarterly Reviw 362 (July 2022). Here is the abstract.

In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 the High Court of Australia held that media companies operating Facebook pages had published allegedly defamatory comments of third-party users made in response to content the companies had posted on their pages.

Download the article from SSRN at the link.

July 27, 2022 | Permalink

Tuesday, June 28, 2022

Travis on State of Florida Appeals Ruling Against Anti-Deplatforming Law: Initial Conclusion Is That Law Violates Freedoms of Speech and of the Press @fiulaw

Hannibal Travis, Florida International University College of Law, has published State of Florida Appeals Ruling Against Anti-Deplatforming Law: Initial Conclusion Is That Law Violates Freedoms of Speech and of the Press. Here is the abstract.

“Deplatforming” and “demonetization” of social media and e-commerce accounts are recurring targets of free speech advocates, fans of “remix culture,” critics of military occupation and imperialism, and those on the political right who complain of Big Tech’s political biases. Lexico.com, powered by the Oxford English Dictionary, defines deplatforming as: “The action or practice of preventing someone holding views regarded as unacceptable or offensive from contributing to a forum or debate, especially by blocking them on a particular website.” On May 2, 2021, Florida’s Republican governor, Ron DeSantis, signed a “first-of-its-kind” law to regulate deplatforming, particularly of political candidates and “journalistic enterprises.” In late May 2021, NetChoice, LLC and the Computer & Communications Industry Association sued several Florida officials, notably Florida’s Attorney General Ashley Brooke Moody. The suit, filed in federal court in northern Florida where the State of Florida’s capital is located, sought a quick ruling that the law violated the First Amendment to the United States Constitution as applied to the State of Florida by the Fourteenth Amendment, as well as the Constitution’s Commerce Clause and a law enacted by Congress pursuant to it, the Communications Decency Act of 1996, 47 U.S.C. § 230. The United States District Court for the Northern District of Florida agreed with the Big Tech companies that the Florida law failed First Amendment scrutiny, conflicted with a federal statute designed to encourage removal of offensive speech, and was hopelessly ambiguous and imprecise. Further, the court agreed with NetChoice that the Florida law conflicted with the Communications Decency Act, and had to give way under the Supremacy Clause of the Constitution. In July 2021, the Florida officials filed their notice of the state’s intent to appeal the injunction to the United States Court of Appeals for the Eleventh Circuit. It seems likely that the state will press its theory that under Supreme Court case law, state governments and even federal agencies may require private enterprises to open up their facilities to speakers with which they disagree, even vehemently. The theory is based largely on Supreme Court case law, including Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), and Rumsfeld v. FAIR, 547 U.S. 47 (2006). Keywords: Internet platforms, social media, deplatforming, anti-deplatforming legislation, journalistic enterprises, viewpoint discrimination, access to private property, official encouragement of private censorship

Download the publication from SSRN at the link.

June 28, 2022 | Permalink

Monday, June 27, 2022

Gilder on Contracting Space for Opposing Speech in South East Asia and Restrictions on the Online Freedom of Expression @DrAlexGilder @UniRDG_Law

Alexander Gilder, University of Reading School of Law, is publishing Contracting Space for Opposing Speech in South East Asia and Restrictions on the Online Freedom of Expression in volume 6 of the Asian Yearbook of Human Rights and Humanitarian Law (2022). Here is the abstract.

The right to freedom of expression has been subjected to limitations in South East Asia with restrictions continuing in Thailand, Vietnam, Indonesia, Singapore, and Malaysia, to name a few countries. Speech that is critical of governments has been prevented with many instances of journalists, bloggers, activists, and opposition groups being detained and convicted, resulting in contracting space for the press and civil society. Going further, Malaysia, Thailand, and Cambodia have sought to restrict online activities through various means. This State practice report outlines examples of laws enacted in Malaysia and Cambodia and practices in Thailand that impact the online freedom of expression and examines the literature on content moderation and human rights frameworks. The report expounds the risks posed by States who seek to restrict the use of the internet for the freedom of expression and highlights the need for future research to examine the legal frameworks being used by states to limit the online freedom of expression.

Download the essay from SSRN at the link.

June 27, 2022 | Permalink

Thursday, June 23, 2022

Gamito on The European Media Freedom Act (Emfa) as Meta-Regulation

Marta Cantero Gamito, University of Tartu, School of Transnational Governance, has published The European Media Freedom Act (Emfa) as Meta-Regulation. Here is the abstract.

This paper discusses how technology convergence is affecting the regulatory landscape of media freedom and media pluralism in Europe and draws relevant policy recommendations on its future development in light of the forthcoming proposal for a European Media Freedom Act.

Download the article from SSRN at the link.

June 23, 2022 | Permalink

Tuesday, June 21, 2022

ICYMI: Linos and Twist on The Supreme Court, the Media, and Public Opinion

ICYMI: Katerina Linos, University of California, Berkeley School of Law; University of California, Berkeley, Berkeley Center on Comparative Equality & Anti-Discrimination Law, and Kimberly Twist, San Diego State University, have published The Supreme Court, the Media, and Public Opinion: Comparing Experimental and Observational Methods at 45 Journal of Legal Studies 223 (2016). Here is the abstract.

Can Supreme Court rulings change Americans’ policy views? Prior experimental and observational studies come to conflicting conclusions because of methodological limitations. We argue that existing studies overlook the media’s critical role in communicating Court decisions and theorize that major decisions change Americans’ opinions most when the media offer one-sided coverage supportive of the Court majority. We fielded nationally representative surveys shortly before and after two major Supreme Court decisions on health care and immigration and connected our public opinion data with six major television networks’ coverage of each decision. We find that Court decisions can influence national opinion and increase support for policies the Court upholds as constitutional. These effects were largest among people who received one-sided information. To address selection concerns, we combined this observational study with an experiment and find that people who first heard about the Court decisions through the media and through the experiment responded in similar ways.
Download the article from SSRN at the link.

June 21, 2022 | Permalink

Friday, June 17, 2022

Han on Compelled Speech and Doctrinal Fluidity @PeppLaw @IndianaLJ

David S. Han, Pepperdine University School of Law, has published Compelled Speech and Doctrinal Fluidity at 97 Indiana Law Journal 841 (2022). Here is the abstract.

Even within the messy and complicated confines of First Amendment jurisprudence, compelled speech doctrine stands out in its complexity and conceptual murkiness—a state of affairs that has only been exacerbated by the Supreme Court’s decisions in NIFLA v. Becerra and Janus v. American Federation of State, County, and Municipal Employees. This Essay observes that as the Court’s compelled speech jurisprudence has grown increasingly complex, it has also manifested a troubling degree of fluidity, where the doctrinal framework has grown so incoherent, imprecise, and unstable that it can be readily shaped by courts to plausibly justify a wide range of disparate results. After examining some recent examples of this doctrinal fluidity and identifying its origins, the Essay observes that a true fix to this problem—the development of a fully coherent and stable compelled speech doctrine—is highly unlikely to emerge under the current state of affairs, given the intractable nature of the sources of this fluidity and the Court’s case-by-case, winner-take-all culture of constitutional adjudication. This Essay therefore argues for a shift in the Supreme Court’s approach to compelled speech doctrine—one that eschews formal complexity in favor of more open-ended, analytically transparent approaches. This proposal is, in essence, a second-best solution. If it is unrealistic to expect that an elegant, fully unified, and consistent doctrinal framework will emerge anytime soon, the Court should, at the very least, avoid obscuring its decisions behind complex and malleable formal doctrines and instead analyze cases in a manner that lays bare the fundamental intuitions and value judgments actually driving its decisions. A useful point of comparison might be to common law courts’ approach to negligence doctrine—an approach that is anchored in a simple, open-ended analysis that forces courts to bring to the fore the fundamental values underlying the doctrine. Such an approach would at least allow courts—and society at large—to discuss and debate these fundamental values openly rather than through a nebulous doctrinal façade that may ultimately serve merely to obscure the contested judgments and intuitions actually driving the results.

Download the article from SSRN at the link.

June 17, 2022 | Permalink

Jones and West on The Disappearing Freedom of the Press @sjquinney @sonjarwest @UGASchoolofLaw

RonNell Anderson Jones, University of Utah College of Law, and Sonja West, University of Georgia School of Law, have published The Disappearing Freedom of the Press as University of Utah College of Law Research Paper No. 482. Here is the abstract.

At this moment of unprecedented decline of local news and amplified attacks on the American press, attention is turning to the protection the Constitution might provide to journalism and the journalistic function. New signals that at least some Justices of the U.S. Supreme Court might be willing to rethink the core press-protecting precedent in New York Times v. Sullivan has intensified these conversations. But this scholarly dialogue appears to be taking place against a mistaken foundational assumption: that the U.S. Supreme Court continues to articulate and embrace at least some notion of freedom of the press. Despite the First Amendment text specifically referencing it—and despite a Roberts Court trend toward other First Amendment expansiveness—freedom of the press is disappearing from the United States Supreme Court’s lexicon. Although the process has gone largely unnoticed, the concept of a free press has almost entirely vanished at the highest court in the land. Our individually coded dataset, capturing every paragraph mentioning the press written by all 114 Justices in 235-year history of the Court, shows that in the last half-century the Court’s references to the concept of freedom of the press have dramatically declined. They are now lower than at any other moment since the incorporation of the First Amendment. The jurisprudential desertion of this concept is evident in every quantitative and qualitative measure we analyzed. Press freedom was once a commonly adopted frame, with the Court readily acknowledging it, both on its own and as a co-existing First Amendment right alongside the freedom of speech. Justices of the Court once routinely recognized it—not only in cases focused on the media, but also in cases not involving the press. The data reveal that these practices are a thing of the past. Gone are not only the ringing, positive endorsements of freedom of the press—situating it as valuable, important, or central to democracy—but also the bare acknowledgement of it at all. A close investigation of the patterns of individual Justices reveals not only that there are no true advocates of the right on the current Court, but also that most of the current Justices have rarely, if ever, mentioned it in any context. The Article addresses both the possible causes and the troubling consequences of this decline. It explores strong evidence contradicting many of the initially appealing explanations for the trend, examining the ways in which the phenomenon is unlikely to be solely a function of the Court’s smaller press-related docket or reliance on settled law in the area. It also examines data on the interrelationships between ideology and acknowledgement of freedom of the press. The Article highlights the ways in which the disappearance of the press-freedom principle at the Court may impede the newly revived effort to invoke the constitution as a tool for preserving the flow of information on matters of public concern.

Download the article from SSRN at the link.

June 17, 2022 | Permalink

Monday, June 13, 2022

Information on the ABA Forum on Communications Law: Feb. 2-4, 2023

From Josh Moore, Reporters Committee for Freedom of the Press

 

Please consider attending the Forum's in-person conference for February 2-4, 2023, in New Orleans at the JW Marriott in the French Quarter.

A dedicated team is busy planning the details, and will be providing outstanding plenary sessions and workshops.

We will be offering the Media Advocacy Program, and the finalists of our Diversity Moot Court program will be arguing before an all-star panel of judges.  In addition, we will be offering other educational programs, as well as the opportunity for in-house counsel, Young Lawyers, law professors/First Amendment clinicians and Women In Communications Law members to discuss issues of interest.

Attendees will be able to visit with old friends and make new ones.  In-house lawyers will benefit from a reduced registration fee.  We are trying to get the word out early so you will build this conference into your 2023 planning.

Our Entertainment Committee (which includes Ashley Heilprin, Scott Sternberg, Mary Ellen Roy and Michael Lambert; Honorary Chair is Barbara Wall) will ensure great venues.  We also intend to have a return to tennis, so you expert players will have the opportunity to show off your skills.

It goes without saying that New Orleans has a lot to offer!  If you choose to stay over until Sunday, Feb 5 (and I’d encourage it), you will have the opportunity to watch (or participate in) the Krewe du Vieux parade.  Some say this parade celebrates First Amendment values more than any other.

We look forward to seeing you.  Inquiries/offers to assist to robb.harvey@wallerlaw.com.  Thanks.

June 13, 2022 | Permalink

Monday, June 6, 2022

Miller on Amplified Speech @USCGouldLaw @CardozoLRev

Erin Miller, University of Southern California Law School, is publishing Amplified Speech in volume 43 of Cardozo Law Review. Here is the abstract.

This Article introduces the concept of amplification into First Amendment law. Amplification, or the size of the audience reached by speech, lies at the heart of many contemporary free speech struggles. Yet the concept is surprisingly absent as a category of analysis from constitutional doctrine and virtually undiscussed in legal scholarship. Amplification deserves its own set of legal rules and doctrines, because the right to amplify one’s speech serves the two core types of First Amendment interests—those of audiences and those of speakers—differently than the right to choose the content of one’s speech. The higher the degree of amplification, the greater the disparity. When it comes to audience interests, amplification via mass media platforms has unique potential to distort the marketplace of ideas that informs voting audiences. When it comes to speaker interests, greater amplification has only diminishing marginal returns for the speaker’s primary interest in autonomy, understood as the capacity for living one’s own life, because speakers need very large audiences neither to (a) form their own life plans nor (b) have the motivation to act on them. Thus, the right to amplify speech to very large audiences is justified by its benefits for audience interests rather than speaker interests, and so may be constitutionally regulated to preserve the integrity of democratic discourse for audiences. A central practical upshot is that certain carefully drafted legal rules on amplification, including campaign finance laws and social media regulations, should survive constitutional scrutiny.

Download the article from SSRN at the link.

June 6, 2022 | Permalink

Sunday, June 5, 2022

Geiger and Mangal on Regulating Creativity Online: Proposal for an EU Copyright Institution @ChristopheGeig1 @nsmangal @GrurInt

Christophe Geiger, Luiss Guido Carli University, and Natasha Mangal, University of Strasbourg, CEIPI, are publishing Regulating Creativity Online: Proposal for an EU Copyright Institution in GRUR International: Journal of European and International IP Law (2022). Here is the abstract.

In 2019, a new copyright directive was passed in the EU aiming to modernize the legal rules established in the 2001 InfoSoc Directive, as well as promote a better functioning ‘digital single market’ for the exploitation of creative works and other protected subject matter. However, after extensive negotiations and compromises reached at the legislative level, the ongoing implementation of the directive into national law seems rather to deepen existing regulatory differences between Member States. The result of this (and past) failed attempts to approximate national copyright regimes had led to the fact that copyright is the least harmonised of all IP rights in the EU. Furthermore, legislative interventions so far have often attracted criticisms for not sufficiently taking into account public interest concerns and safeguarding fundamental rights in the offline and online world. Therefore, the time has come to consider another perspective on harmonisation: one which focuses on improving the existing institutional and regulatory arrangement for copyright in the EU by providing a new avenue for Member State cooperation in oversight, policy-building and enforcement. In recent years, particularly considering the many challenges of regulating conduct online, there has been growing attention towards re-centralizing certain regulatory tasks to public, independent EU level authorities. Given the growing number of cross-border enforcement issues in administering copyright in the online environment, an EU level regulator may also be better placed to monitor the copyright-relevant activities of online platforms, centralize EU wide dispute resolution, deliver policy advice on the future design of copyright legislation, and help coordinate Member State enforcement and regulatory practices. Such a public regulator would also likely be in a better position than private actors to guarantee a fair balance of interests and the respect of fundamental rights online, giving shape to what has recently been conceptualized as “digital constitutionalism”. If created, in the long term such an authority may help to ensure greater levels of transparency, predictability and certainty for EU copyright stakeholders participating in the online content marketplace. Centring on the premise that the established institutional and regulatory frameworks in the EU are no longer capable of promoting the goals of a modern, online copyright, this article explores a specific solution in detail: introducing a new, EU-level public regulator for copyright. Part I first evaluates the available room for manoeuvre in the existing regulatory and institutional framework for administering copyright law in the EU by examining recent trends and developments in EU institutional frameworks. The examples of the European Data Protection Board and the “European Board for Digital Services” in the DSA are analysed in order to identify parallels and draw inferences for a potential equivalent in the field of copyright. Part II then identifies several key aspects of the CDSM Directive that leave important questions of regulatory design unanswered and proposes several available “institutional” options to improve its implementation. The article concludes with recommendations.

Download the article from SSRN at the link.

June 5, 2022 | Permalink

Tuesday, May 31, 2022

Usher and Kim-Leffingwell on How Loud the Watchdog Barks: A Reconsideration of Local Journalism, News Non-Profits, and Political Corruption @nikkiusher @openmarkets @SKimLeffingwell

Nikki Usher, University of Illinois, Urbana-Champaign; Open Markets Institute, Center for Journalism & Liberty, and Sanghoon Kim-Leffingwell, Johns Hopkins University, Advanced Academic Program, have published How Loud Does the Watchdog Bark? A Reconsideration of Local Journalism, News Non-profits, and Political Corruption. Here is the abstract.

Journalism has long been presumed to serve as a check on the powerful, shedding light on wrongdoing; however, as local newspapers reach market failure, extant theory pre- dicts corruption will go unchecked. We operationalize corruption as federal prosecutions for public corruption, defined by the US Department of Jus- tice as crimes involving the abuse of public trust by government by federal, state, and local public officials. We examine changes in the local news media ecosystems: first, whether declines in legacy local newspaper employment and circulation are associated with changes in prosecutions for public corruption; and second, whether efforts to supplement watchdog journalism with non-profit journalism might mitigate associated declines in federal prosecution for public corruption. Our findings suggest nonprofit interventions in failing local commercial news markets may be an important safeguard for keeping public officials accountable.

Download the article from SSRN at the link.

May 31, 2022 | Permalink

Friday, May 27, 2022

Robbins on Explaining Florida Man @AUWCL @fsulawreview

Ira P. Robbins, American University College of Law, is publishing Explaining Florida Man in the Florida State University Law Review. Here is the abstract.
“Florida Man” is a popular cultural phenomenon in which journalists report on Floridians’ unusual (and often criminal) behavior, and readers relish in and share the stories, largely on social media. A meme based on Florida Man news stories emerged in 2013 and continues to capture people’s attention nationwide. Florida Man is one of the latest unique trends to come from the Sunshine State and contributes to Florida’s reputation as a quirky place. Explanations for Florida Man center on Florida’s Public Records Law, which is known as one of the most expansive open records laws in the country. All states and the District of Columbia have open records laws that establish procedures for individuals to obtain access to public records in the spirit of government transparency. Because many Florida Man stories are based on arrest records and incident reports and incorporate mugshots, those who have written about Florida Man claim that the Florida Public Records Law, which allows reporters to access those records, is behind the trend. The problem with this theory is that it incorrectly implies that Florida’s Public Records Law offers journalists advantages in writing stories that other states’ laws do not. Despite the broad grant of access to police documents that Florida’s open records law provides, other states’ open records laws similarly provide the public with access to arrest records, incident reports, and, although to a lesser extent, mugshots. Other provisions of Florida’s Public Records Law that contribute to the ease of access to Florida’s public records compared with other states’ equivalent laws are largely irrelevant to Florida Man’s existence. Even coupled with the characteristics of Florida and its residents that many people claim are unique, the open records law-based theory for Florida Man’s existence falls short of explaining the phenomenon. This Article posits that the primary reasons for Florida Man’s popularity are preexisting popular culture trends and the venue in which Florida Man rose to fame: the internet. Internet platforms allow a wide audience—which may already have been receptive to jokes about Florida due to its reputation for being a newsworthy state—to easily consume, share, and re-share Florida Man content, inspiring journalists to continue to write Florida Man stories. This cycle of generation and consumption of Florida Man stories has allowed Florida Man to become one of the longest-living memes in internet history. While the Florida Public Records Law and characteristics of Florida and its people work together to provide raw material for Florida Man articles, the heretofore unmentioned popular culture and internet trend factors of the phenomenon complete the story behind Florida Man’s existence.
Download the article from SSRN at the link.

May 27, 2022 | Permalink