Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, July 23, 2010

Daniel Schorr, 1916-2010

From NPR: news that longtime news analyst and commentator Daniel Schorr has died at the age of 93. More here from the New York Times, which has a lengthy obituary.

Mr. Schorr was famous not just for that distinctive and authoritative voice, but for his appearance on the Nixon White House "enemies list." As the news broke, and as he continued to cover Watergate and fallout from that story, he seemed unperturbed. He continued working as a journalist, at CBS, then as CNN's first reporter (recruited by Ted Turner) and ultimately at NPR.

July 23, 2010 | Permalink | TrackBack (0)

John Dean On the Shirley Sherrod Matter

John Dean weighs in on whether Shirley Sherrod should take legal action against Andrew Breitbart and Fox News over Mr. Breitbart's presentation of an edited version of her remarks before a local NAACP audience and Fox News' airing of the clip without investigating whether any more of it was available. (NB: the date on this post seems to be incorrect: surely it should read something other than July 9, 2009). His conclusion: while she probably has a false light cause of action against both, she'd be in for years of unpleasantness in and out of court, and she's already gotten a lot of favorable publicity in the aftermath of this matter. Mr. Dean also analyzes Jonathan Turley's post on the false light case Ms. Sherrod could put forward. Prof. Turley in turn references Mr. Dean. While neither post mentions important Supreme Court cases decided in the false light area, they are Time Inc. v. Hill (376 U.S. 254 (1967)) and Cantrell v. Forest City Publishing (419 U.S. 245 (1974)), which set forth the constitutional standards. 

July 23, 2010 | Permalink | TrackBack (0)

The Intersection of Election Law and Constitutional Law

Heather Gerken, Yale University Law School, has published Keynote Address: What Election Law Has to Say to Constitutional Law (forthcoming in the Indiana Law Journal). Here is the abstract.

This paper briefly reexamines the relationship between election law and constitutional law. It begins with a tongue-in-cheek history of the field's development as it moved from a faraway outpost of constitutional law to an independent field in its own right. The notion of election law's exceptionalism has by now become conventional wisdom among scholars in the field, as most agree that constitutional law cannot be applied witlessly to the domain of elections. If scholars are divided between lumpers and splitters - those who see connections across subject areas and those who think contextual differences matter most - then scholars have written about the relationship between election law and constitutional law largely in the cadence of the splitter.

This paper calls for a bit more lumping. While election law is exceptional, portions of constitutional law are exceptional as well. There may be more opportunities for intellectual arbitrage than people have typically imagined. For this reason, the paper argues that during the next stage of the field's development, election law scholars ought to have imperial aims. They should do more than declare their independence from constitutional law; they should colonize it. There are lessons to be drawn from election law, sensibilities that permeate the field that are not as prevalent elsewhere, a distinctive perspective that might help reframe conventional constitutional law debates. The remainder of the paper charts some of the ways in which we might translate election law’s insights into the domain of constitutional law.

Download the article from SSRN at the link.

July 23, 2010 | Permalink | TrackBack (0)

Thursday, July 22, 2010

Man Involved In "South Park" Warning Picked Up By FBI

The Hollywood Reporter notes that Zachary Chesser, who alluded to dire things that might happen to Trey Parker and Matt Stone, the men behind the hit South Park, by putting a warning on a radical Muslim bulletin board, has been picked up by FBI agents after he attempted to leave the U.S. Mr. Chesser, who is on the "no-fly" list, was arrested July 10 when he tried to travel to Somalia to join the terrorist group al-Shabab. The FBI detained Mr. Chesser on charges unrelated to the "South Park" issue. The charges relate to providing material support and resources to a designated foreign terrorist organization in violation of 18 U.S.C. Sec. 2339B. Link to FBI affidavit here.

July 22, 2010 | Permalink | TrackBack (0)

News of the World Says Its Articles Concerning State of Jolie-Pitt Relationship Untrue; Pays Damages

From the Guardian: the News of the World is paying Brad Pitt and Angelina Jolie damages after acknowledging that its January story that the pair was separating is untrue. NOTW alleged that the famous couple visited an attorney and hashed out an agreement concerning finances and custody of their six children. The tabloid now says its article, and a second one a few days later, contained false statements.

July 22, 2010 | Permalink | TrackBack (0)

The Extent of Copyright In Original, Unpublished Material: Raymond Carver's Stories

Matthew J. Weldon, Benjamin N. Cardozo School of Law, has published Publishing Raymond Carver's 'Original' Stories as 'Fair Use' in volume 7 of the Cardozo Public Law, Policy and Ethics Journal (2008/2009). Here is the abstract.

This is a paper on copyright law as it relates the controversy of publishing Raymond Carver's stories in their unedited form.

The controversy arose when Raymond Carver's widow, Tess Gallagher, expressed her desire to publish these stories because Carver's editor, Gordon Lish, had dramatically changed their character and style. Indeed, she claimed that these unedited stories represented the "real" Caver, whom she wished to reveal to the world. However, Carver's estate no longer owned the copyrights to these stories.

The issue is particularly interesting because the "original" versions of the stories are considerably different from the published versions as edited by Lish. Thus, there is some ambiguity as to whether they are covered by the copyright of the published stories - in essence, they are the building blocks of the published versions, and thus it is unclear whether they would be considered derivative works.

These questions aside, this papers explores the role of an editors and various ways that editors receive recognition for their efforts. It then explores joint authorship under American law, and how the Carver situation would be different in a jurisdiction where moral rights are recognized. Finally, "fair use" is applied to to the particular facts to allow the revelation of Carver's unedited oeuvre.

Download the article from SSRN at the link.

July 22, 2010 | Permalink | TrackBack (0)

The Neutral Reportage Privilege in England and Wales

Jason John Bosland, Faculty of Law, University of New South Wales; University of Melbourne, Centre for Media and Communications Law, has published Republication of Defamation under the Doctrine of Reportage - The Evolution of Common Law Qualified Privilege in England and Wales, forthcoming in the Oxford Journal of Legal Studies. 

This paper examines the ‘doctrine of reportage’ - a particular application of the ‘Reynolds’ qualified privilege defence to defamation recognised by the House of Lords in Reynolds v Times Newspapers Ltd. The doctrine of reportage provides protection for the neutral reporting (republication) of defamatory allegations made by others in the context of a dispute or controversy of public interest. It is argued in this paper, however, that this emerging defence is doctrinally distinct from the privilege recognised in Reynolds and that its jurisprudential basis needs to be reconsidered. Moreover, the development of the defence under the guise of Reynolds privilege has led to confusion, both by courts and by commentators, as to its potential breadth. It is suggested that the public interest justifications underpinning the reportage defence need to be explicitly re-examined by the courts in order to define its proper scope. Following an examination of these public interest justifications, it is argued that a broad interpretation of the defence should be rejected.

Download the article from SSRN at the link.

July 22, 2010 | Permalink | TrackBack (0)

Wednesday, July 21, 2010

Will Conrad Black Be Released?

Judge Amy St. Eve may allow Conrad Black out of jail soon on $2 million bond, say sources. He has served just one third of his six year sentence for fraud. More here.

July 21, 2010 | Permalink | TrackBack (0)

No Loafing Around--Get Out the Fresh Bread

The Advertising Standards Authority (UK) has dinged Tesco, the big grocery store chain, for claiming that its bread is "baked from scratch in our in-store bakery," when it, well, isn't. According to the Telegraph, the Real Bread Campaign went after the chain for its ads which also trumpeted that such bread was "freshly baked." It seems that "freshly baked" meant days ago.

Tesco told the ASA that

bread was baked from scratch in 504 of its in-store bakeries, predominantly in its larger stores. In 1,288 stores, Tesco said they used part-baked, or "bake-off", bread which was "finished" in the in-store bakery. Tesco explained that most of their stores had a bakery facility. "Tesco said that out of 936 supermarkets, 504 had scratch bakeries and they produced the majority of in-store bread, because they were bigger stores. They said customers would not recognise that Express stores had an in-store bakery because they only baked three or four lines of bread". Tesco believed that the small print in the ad explained what a "scratch bakery" was and made clear that those loaves were available in selected stores....

Said the agency,

ASA understood that "bake-off" loaves were baked at another site then chilled or frozen, and finally re-baked or "finished" on the premises. In contrast, "scratch bakery" loaves were prepared and baked freshly from base ingredients on site. We considered that the claim "Fresh bread. Baked from scratch in our in store bakery. Using 100% British flour. So every single loaf is genuinely British ... Born and bread" was likely to be interpreted by readers as meaning that all Tesco stores with an in-store bakery baked their loaves from scratch. We understood that most Tesco stores had a bakery facility but that only 504 stores baked bread "from scratch". Because we considered that the ad implied that all Tesco stores with a bakery facility baked bread from scratch, which was true of only a limited number of stores, we concluded the ad was likely to mislead.

ASA said the ad breach the advertising code's rule 7.1 (truthfulness). Read the entire adjudication here.

July 21, 2010 | Permalink | TrackBack (0)

Balancing Library Collection Management and the First Amendment

Anne Klinefelter, University of North Carolina (Chapel Hill), School of Law, has published First Amendment Limits on Library Collection Management, in volume 102 of the Law Library Journal (2010). Here is the abstract.

First Amendment freedoms impose some limits on publicly funded libraries’ discretion to manage their collections, but identifying those limits is difficult. The First Amendment law of libraries is murky territory, defined by three Supreme Court decisions that failed to produce majority opinions and lower court opinions that have employed a variety of doctrinal approaches. Libraries nonetheless must make sense of these cases to create and implement collection development and Internet access policies and procedures. This article surveys and analyzes the First Amendment law of library collections and finds that libraries’ discretion is broad, but certain limitations apply. These can serve as a reminder to librarians of their ethical commitment to challenge censorship and provide access to all points of view.

Download the paper from SSRN at the link.

July 21, 2010 | Permalink | TrackBack (0)

The Reach of the First Amendment

Timothy Zick, William & Mary Law School, has published Territoriality and the First Amendment: Free Speech At - And Beyond - Our Borders at 85 Notre Dame Law Review 101 (2010). Here is the abstract.

This Article examines the relationship between territorial borders and First Amendment speech, press, and associational liberties. It posits that we have not one but three First Amendments - the intraterritorial, which protects expressive liberties within the U.S. and its territories; the territorial, which governs the cross-border exercise of these liberties; and the extraterritorial, which concerns both efforts to export First Amendment norms abroad and the application of First Amendment limitations outside U.S. borders. The Article focuses on the First Amendment’s territorial and extraterritorial dimensions. The path of the territorial First Amendment has been one of steady liberalization, mostly owing to legislative and executive policymaking but with some assistance from courts. During the past several decades, many immigration, travel, and trade laws and regulations have been substantially amended or repealed. As a result, cross-border information flow is less affected by explicit ideological concerns and borders are much softer in terms of the materials allowed to enter or exit the U.S. than during past eras. Social and political forces such as globalization, internationalism, and digitization have also contributed substantially to the ability of speech and associations to transcend territorial borders. Although this de-territorialization poses challenges to U.S. security and sovereignty, on balance it ought to be embraced owing to the expressive, political, and economic benefits it produces. With regard to the First Amendment’s extraterritorial dimension, legal, social, and political forces will increasingly place the First Amendment in direct contact and conflict with foreign speech regimes. Like other countries, the U.S. will have to navigate the tension between protecting its citizens’ interests in a globalized world and displacing foreign speech regimes through rights imperialism. The best opportunities for expanding the First Amendment’s domain of influence are likely to arise from diplomatic, funding, and technological policymaking. As it seeks to expand the influence of First Amendment principles abroad, the U.S. will also have to defend First Amendment exceptionalism at home from transnational and international influences. Finally, whether and if so to what extent the First Amendment follows the flag beyond U.S. borders remains an open question. Although support for expanding the Constitution’s territorial domain exists, there are substantial jurisprudential and theoretical obstacles to expansion of the First Amendment’s regulatory domain. Among other things, we lack a convincing justification for extending First Amendment concerns across and even beyond our borders.

Download the article from SSRN at the link.

July 21, 2010 | Permalink | TrackBack (0)

The History of the Intellectual Property Clause


The American patent system emanates from the intellectual property clause in Article I of the U.S. constitution. Over two centuries of Congressional Acts and court legal opinions have shown a pattern of supporting strong patent rights.

In contrast to the view that supports strong patent rights, the article shows a history of patent abolitionists in the nineteenth century and an anti-patent movement in the twentieth and twenty-first centuries that prefers weak patent rights. The patent critics share the view that patents block progress because of the exclusive right that prevents others from making, selling or using a patented invention. The patent critics prefer a system to encourage innovation that supports prizes. Most of the patent critic arguments focus on short term benefits to the occasionally successful inventor and completely ignore the ex ante risks and costs of invention and the long-run benefits of dynamic efficiency obtained by a strong patent system.

The article observes that prizes were used before patents were prominent in the nineteenth century and that there are limits to prizes. The insight of the founding fathers was to embed patent rights into inventions that will provide an opportunity for the inventor to commercialize the inventions. The success of the American patent system has produced waves of industrial success, illustrating that a strong patent regime is an economic necessity.

To deal with patent critics, the courts and Congress have constrained elements of the patent system when necessary. These limitations have addressed issues that balance the patent regime to protect the public interest but also to incentivize investment in scientific and technological research and to promote economic progress.
Download the paper from SSRN at the link.

July 21, 2010 | Permalink | TrackBack (0)

Tuesday, July 20, 2010

The State of Free Speech On Private Campuses

Kelly Sarabyn has published Free Speech at Private Universities at 39 Journal of Law & Education 145 (April 2010). Here is the abstract.

For the last thirty years, our nation’s universities have debated whether to proscribe hate speech on campus. Universities’ paramount function is to seek knowledge, and thus they desire free and open inquiry, but universities also wish to ensure that they provide a welcoming environment to historically disadvantaged groups. A detailed study of the policies of the top 150 universities reveals that the majority of universities - rather than resolve these conflicting goals - maintain contradictory policies that both protect and proscribe hate speech. This allows schools to tout different policies to different interest groups, and it leaves students vulnerable to unexpected punishment. I explore possible responses to this pervasive problem. Direct regulation - forcing private universities to allow hate speech - may vindicate the liberal ideal of free speech, but it threatens the liberal ideal of the right to private association. Applying contract law, in contrast, allows private universities to set their own policies, but not to promise community members one type of institution and then deliver another. This enables experimentation across institutions and forces universities to reach a resolution on the question of proscribing hate speech. It would thus move the debate over proscribing hate speech forward.

Download the article from SSRN at the link.

July 20, 2010 | Permalink | TrackBack (0)

The Spice Guys and Libraries

These videos are only slightly related to media law but they're funny and they plug the importance of libraries. So here they are. Enjoy. This one, courtesy of Isaiah Mustafa, who is the new face of "Old Spice," tells us why we should celebrate libraries and the materials in them (and presumably protect the rights both of authors and readers--I knew I'd come up with a media law link at some point).

This one is courtesy of the Brigham Young Standup Comedy Club President, Stephen Jones, and the BYU Library. Mr. Jones appears as the "New Spice Guy" and riffs on Mr. Mustafa's character. Great stuff.

For both video links--hat tip to the Chronicle of Higher Education Tweed Blog.

July 20, 2010 | Permalink | TrackBack (0)

Internet Filtering and Responses To Its Use


In recent years, Internet filtering, while not a new phenomenon, has grown both in the United States and across the globe. Empirical studies by organizations such as OpenNet Initiative show the pervasiveness of government filtering is increasing worldwide. Increasingly, private actors, such as Internet Service Providers (“ISPs”), have taken on filtering responsibilities. Moreover, recent technological innovations, particularly a change in the types of devices accessing the Internet, will make Internet regulation and consequently filtering easier to accomplish in the future. As a result of these developments, commentators have recently begun to speculate, after the decision by the World Trade Organization (“WTO”) in United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services, whether some Internet filtering might violate WTO commitments under the General Agreement on Trade in Services (“GATS Agreement”).

This paper addresses two possible legal responses to the rise of Internet filtering. First, the paper argues that U.S. Internet filtering practices generally do not violate U.S. GATS commitments. Rather, the WTO’s decision in U.S.-Gambling Services was unique and unlikely to be repeated because (1) the U.S. is predominately an exporter of electronic services and not an importer, and (2) the U.S.-Gambling Services decision resulted from a denial of market access. Instead, those seeking to impose legal liability for U.S. filtering practices should pursue tort remedies, specifically for tortious interference in contractual relations. Although there are only a limited number of cases that have applied the tort of intentional interference in contractual relations in the Internet context, those precedents suggest plaintiffs can recover provided they establish that the filtering was both intentional and improper. The outlook is similarly positive for at-will relationships, which require proof of similar elements as contractual relationships.

Download the paper from SSRN at the link.

July 20, 2010 | Permalink | TrackBack (0)

Freedom of Speech in Russia: The LImits

From the New York Times, an article on just how limited artistic speech still is in Russia, and how far artists are willing to push the government on the issue.

July 20, 2010 | Permalink | TrackBack (0)

Monday, July 19, 2010

The Web's "Yuck" Factor

Extraterritorial Jurisdiction In Cyberspace

Chris Reed, Queen Mary University of London School of Law, has published Think Global, Act Local: Extraterritoriality in Cyberspace. Here is the abstract. 

It is uncontroversial that states are entitled to apply their national laws to foreign cyberspace actors where the cyberspace activity has effects in the state. This article argues, however, that states should wherever possible not do so. Laws which are in practice unenforceable reduce the normative force of law as a whole and create the risk that otherwise respectable cyberspace actors will become deliberate lawbreakers. Instead states should attempt to reduce the reach of their laws into cyberspace except where doing so is the only way to protect an essential interest of the state.
Download the paper from SSRN at the link.

July 19, 2010 | Permalink | TrackBack (0)

The Life of a Media Blogger

The New York Times notes the Politico staff is stressed. No joke.

July 19, 2010 | Permalink | TrackBack (0)

Sunday, July 18, 2010

Library Standards of Privacy and Norms for the Digital World

Anne Klinefelter, University of North Carolina, Chapel Hill School of Law, has published Library Standards for Privacy: A Model for the Digital World? in volume 11 of  the North Carolina Journal of Law & Technology (2010). Here is the abstract.

In the ongoing Google Books settlement process, several advocacy organizations, including library associations, have filed amicus briefs to the supervising court demanding provisions for reader privacy. Because the scanned content for Google Books has come from cooperating research libraries, these advocacy groups argued that it was in the public interest that library standards for privacy should follow that content into this new digital context. The recommendation is worth consideration for other extra-library reading as well, both in digital and print contexts. While librarians have been successful advocates for privacy in library-provided reading, the values for reader privacy are the same in individuals’ subscriptions to Google Books, licensed access to e-reader books, reading on the Internet, and purchase of books through online or brick-and-mortar bookstores. This essay shares a librarian’s-eye-view of library standards for privacy and suggests that the law of reader privacy must not only address readers of Google Books, but also other digital reading and even print reading contexts external to libraries in order to protect the privacy of thought for readers.

Download the article from SSRN at the link.

July 18, 2010 | Permalink | TrackBack (0)