Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, June 29, 2012

Supreme Court Refuses Cert In "Wardrobe Malfunction" Case

Unsurprisingly, the Supreme Court has refused to hear an appeal from the FCC in the "wardrobe malfunction" case out of the Third Circuit, allowing the lower court ruling to stand. The 3d Circuit has ruled in favor of CBS. More here from the Los Angeles Times.

Last week, the high court ruled in FCC v. Fox that the agency's "fleeting expletives" policy was too vague to afford broadcasters notice of what would violate the policy.

June 29, 2012 | Permalink | TrackBack (0)

The Press and Public Discourse

Joseph Blocher, Duke University School of Law, has published Public Discourse, Expert Knowledge, and the Press in volume 87 of the Washington Law Review (2012). Here is the abstract.

This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse and social practices can do any analytic work independent of the value of democratic legitimation, or instead are simply labels for speech that furthers it. Consideration of the press helps to illuminate the problem and a potential solution.

The second complication is the interface between expert knowledge and public discourse. Post’s theory of democratic competence convincingly explains how such knowledge is created and circulated outside of public discourse. But in order to inform self-governance, expert knowledge must ultimately be disseminated into public discourse. The theory does not yet account for how this happens, nor how such expert knowledge can serve an informative function, given that public discourse transmutes claims of expert knowledge into statements of opinion. Again, the press serves as an illustrative and important example.

Download the essay from SSRN at the link.

June 29, 2012 | Permalink | TrackBack (0)

Star Paw-wer

It didn't take long. Icanhascheezburger re-casts the stars of the HBO series Newsroom as felines.

June 29, 2012 | Permalink | TrackBack (0)

Producers of "The Bachelor" Move For Dismissal of Lawsuit Based On First Amendment Defense

From The Hollywood Reporter: The producers and network of reality series "The Bachelor" have filed a motion asking for dismissal of the lawsuit claiming that the show violates civil rights statutes. Producers Warner Horizon Television and ABC say that the First Amendment protects the creators' selections of cast who appear on the show. Lawyers for the producers and ABC also point the judge toward the Supreme Court's recent Fox decision on indecency.

The suit arises out of claims by two Tennessee men who say that the show has never featured an African-American "Bachelor" because the producers and ABC refuse to contract with African-Americans.

Read the motion for dismissal here (courtesy of the Hollywood Reporter).

June 29, 2012 | Permalink | TrackBack (0)

Sidewalk Chalk and the First Amendment

Marie A. Failinger, Hamline University School of Law, is publishing Talking Chalk: Defacing the First Amendment in the Public Forum in the West Virginia Law Review. Here is the abstract.

This article examines the surprising outcomes of cases challenging arrests of protesters for chalking sidewalks in public forums, and argues that courts have been careless in analyzing these blanket prohibitions under the time, place and manner doctrine.

Download the article from SSRN at the link.


June 29, 2012 | Permalink | TrackBack (0)

"Lying Was His Habit"

The Supreme Court has upheld the Ninth Circuit's finding that the Stolen Valor Act is unconstitutional under the First Amendment.


The majority opinion reads in part:

The probable, and adverse, effect of the Act on freedom of expression illustrates, in a fundamental way, the reasons for the Law's distrust of content-based speech prohibitions.

The Act by its plain terms applies to a false statement made at any time, in any place, to any person. It can be assumed that it would not apply to, say, a theatrical performance. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990) (recognizing that some statements nominally purporting to contain false facts in reality "cannot reasonably be interpreted as stating actual facts about an individual" (internal quotation marks and brackets omitted)). Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered conversations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so entirely without regard to whether the lie was made for the purpose of material gain. See San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 539-540, 107 S. Ct. 2971, 97 L. Ed. 2d 427 (1987) (prohibiting a nonprofit corporation from exploiting the "commercial magnetism" of the word "Olympic" when organizing an athletic competition (internal quotation marks omitted)).

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania's Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U.S., at 771, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court's cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

The previous discussion suffices to show that the Act conflicts with free speech principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, see Stevens, 559 U.S., at ___, 130 S. Ct. 1577, at 1585, 176 L. Ed. 435 ("The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits"), but rather has applied the "most exacting scrutiny." Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). Although the objectives the Government seeks to further  by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny.

The Government is correct when it states military medals "serve the important public function of recognizing and expressing gratitude for acts of heroism and sacrifice in military service," and also "'foste[r] morale, mission accomplishment and esprit de corps' among service members." Brief for United States 37, 38. General George Washington observed that an award for valor would "cherish a virtuous ambition in . . . soldiers, as well as foster and encourage every species of military merit." General Orders of George Washington Issued at Newburgh on the Hudson, 1782-1783 (Aug. 7, 1782), p. 30 (E. Boynton ed. 1883). Time has not diminished this idea. In periods of war and peace alike public recognition of valor and noble sacrifice by men and women in uniform reinforces the pride and national resolve that the military relies upon to fulfill its mission.

These interests are related to the integrity of the military honors system in general, and the Congressional Medal of Honor in particular. Although millions have served with brave resolve, the Medal, which is the highest military award for valor against an enemy force, has been given just 3,476 times. Established in 1861, the Medal is reserved for those who have distinguished themselves "conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty." 10 U. S. C. §§3741 (Army), 6241 (Navy and Marine Corps), 8741 (Air Force), 14 U. S. C. §491 (Coast Guard). The stories of those who earned the Medal inspire and fascinate, from Dakota Meyer who in 2009 drove five times into the midst of a Taliban ambush to save 36 lives, see Curtis, President Obama Awards Medal of Honor to Dakota Meyer, The White House Blog (Sept. 15, 2011) (all Internet materials as visited June 25, 2012, and available in Clerk of Court's case file); to Desmond Doss who served as an army medic on Okinawa and on June 5, 1945, rescued 75 fellow soldiers, and who, after being wounded, gave up his own place on a stretcher so others could be taken to safety, see America's Heroes 88-90 (J. Willbanks ed. 2011); to William Carney who sustained multiple gunshot wounds to the head, chest, legs, and arm, and yet carried the flag to ensure it did not touch the ground during the Union army's assault on Fort Wagner in July 1863, id., at 44-45. The rare acts of courage the Medal celebrates led President Truman to say he would "rather have that medal round my neck than . . . be president of the United States." Truman Gives No. 1 Army Medal to 15 Heroes, Washington Post, Oct. 13, 1945, p. 5. The Government's interest in protecting the integrity of the Medal of Honor is beyond question.

But to recite the Government's compelling interests is not to end the matter. The First Amendment requires that the Government's chosen restriction on the speech at issue be "actually necessary" to achieve its interest. Entertainment Merchants Assn., 564 U.S., at ___, 131 S. Ct. 2729, at 2738, 180 L. Ed. 708. There must be a direct causal link between the restriction imposed and the injury to be prevented. See ibid. The link between the Government's interest in protecting the integrity of the military honors system and the Act's restriction on the false claims of liars like respondent has not been shown. Although appearing to concede that "an isolated misrepresentation by itself would not tarnish the meaning of military honors," the Government asserts it is "common sense that false representations have the tendency to dilute the value and meaning of military awards," Brief for United States 49, 54. It must be acknowledged that when a pretender claims the Medal to be his own, the lie might harm the Government by demeaning the high purpose of the award, diminishing the honor it confirms, and creating the appearance that the Medal is awarded more often than is true. Furthermore, the lie may offend the true holders of the Medal. From one perspective it insults their bravery and high principles when falsehood puts them in the unworthy company of a pretender.

Yet these interests do not satisfy the Government's heavy burden when it seeks to regulate protected speech. See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). The Government points to no evidence to support its claim that the public's general perception of military awards is diluted by false claims such as those made by Alvarez. Cf. Entertainment Merchants Assn., supra, at ___-___, 131 S. Ct. 2729, at 2738-2739, 180 L. Ed. 708 (analyzing and rejecting the findings of research psychologists demonstrating the causal link between violent video games and harmful effects on children). As one of the Government's amici notes "there is nothing that charlatans such as Xavier Alvarez can do to stain [the Medal winners'] honor." Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae 1. This general proposition is sound, even if true holders of the Medal might experience anger and frustration.

The lack of a causal link between the Government's stated interest and the Act is not the only way in which the Act is not actually necessary to achieve the Government's stated interest. The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements "Alvarez was perceived as a phony," 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation, see, e.g., Bigham, Water District Rep Requests Alvarez Resign in Wake of False Medal Claim, San Bernardino Cty., CA, The Sun (May 21, 2008). There is good reason to believe that a similar fate would befall other false claimants. See Brief for Reporters Committee for Freedom of the Press et al. asAmici Curiae 30-33 (listing numerous examples of public exposure of false claimants). Indeed, the outrage and contempt expressed for respondent's lies can serve to reawaken and reinforce the public's respect for the Medal, its recipients, and its high purpose. The acclaim that recipients of the Congressional Medal of Honor receive also casts doubt on the proposition that the public will be misled by the claims of charlatans or become cynical of those whose heroic deeds earned them the Medal by right. See, e.g., Well Done, Washington Post, Feb. 5, 1943, p. 8 (reporting on President Roosevelt's awarding the Congressional Medal of Honor to Maj. Gen. Alexander Vandegrift); Devroy, Medal of Honor Given to 2 Killed in Somalia, Washington Post, May 24, 1994, p. A6 (reporting on President Clinton's awarding the Congressional Medal of Honor to two special forces soldiers killed during operations in Somalia).

The remedy for speech that is false is speech that is true. This is the ordinary course in a free  society. The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight-out lie, the simple truth. See Whitney v. California, 274 U.S. 357, 377, 47 S. Ct. 641, 71 L. Ed. 1095 (1927) (Brandeis, J., concurring) ("If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence"). The theory of our Constitution is "that the best test of truth is the power of the thought to get itself accepted in the competition of the market," Abrams v.United States, 250 U.S. 616, 630, 40 S. Ct. 17, 63 L. Ed. 1173 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person. And suppression of speech by the government can make exposure of falsity more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orchestrate public discussion through content-based mandates.

Expressing its concern that counterspeechis insufficient, the Government responds that because "some military records have been lost . . . some claims [are] unverifiable," Brief for United States 50. This proves little, however; for without verifiable records, successful criminal prosecution under the Act would be more difficult in any event. So, in cases where public refutation will not serve the Government's interest, the Act will not either. In addition, the Government claims that "many [false claims] will remain unchallenged." Id., at 55. The Government provides no support for the contention. And in any event, in order to show that public refutation is not an adequate alternative, the Government must demonstrate that unchallenged claims undermine the public's perception of the military and the integrity of its awards system. This showing has not been made.

It is a fair assumption that any true holders of the Medal who had heard of Alvarez's false claims would have been fully vindicated by the community's expression of outrage, showing as it did the Nation's high regard for the Medal. The same can be said for the Government's interest. The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradition. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.

In addition, when the Government seeks to regulate protected speech, the restriction must be the "least restrictive means among available, effective alternatives." Ashcroft, 542 U.S., at 666, 124 S. Ct. 2783, 159 L. Ed. 2d 690. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Congressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individuals have already created databases similar to this, see Brief for Respondent 25, and at least one database of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, The Solicitor General responds that although Congress and the Department of Defense investigated the feasibility of establishing a database in 2008, the Government "concluded that such a database would be impracticable and insufficiently comprehensive." Brief for United States 55. Without more explanation, it is difficult to assess the Government's claim, especially when at least one database of Congressional Medal of Honor winners already exists.

The Government may have responses to some of these criticisms, but there has been no clear showing of the necessity of the statute, the necessity required by exacting scrutiny.

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find respondent's statements anything but contemptible, his right to make those statements is protected by the Constitution's guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.




The New York Times on the Stolen Valor decision, here. A link to the Court's ruling, here. The case is U. S. v. Alvarez.

June 29, 2012 | Permalink | TrackBack (0)

Link-Listing Websites and Spanish IP Law

Pablo Ramirez Silva, Universitat Pompeu Fabra Department of Law, has published Link-Listing Websites and Intellectual Property in Indret, Volume 2 (2012). Here is the abstract.

The purpose of this paper is to study whether the activity of the so-called ‘link-listing websites’, which offer links to websites, servers or computers of third parties in which audiovisual, musical or literary works are illegally made available to the public, constitutes a breach of the Spanish regulation on intellectual property rights. In this regard, the author of this paper proposes to categorize the activity of this type of websites in the scope of the public communication right.

Note: Downloadable document is in Spanish.

Download the article from SSRN at the link.

June 29, 2012 | Permalink | TrackBack (0)

Games and the Right of Publicity

William K. Ford and Raizel Liebler, John Marshall Law School, have published Games are Not Coffee Mugs: Games and the Right of Publicity in volume 29 of Santa Clara Computer and High Technology Law Journal (2012). Here is the abstract.

Are games more like coffee mugs, posters, and t-shirts, or are they more like books, magazines, and films? For purposes of the right of publicity, the answer matters. The question goes to the heart of whether games should be treated as merchandise or expression. The three classic judicial decisions on this topic — decided in 1967, 1970, and 1973 — held that the various defendants needed permission to use the plaintiffs’ names in their board games. In so doing, these decisions judicially confirmed the status of games as merchandise, rather than something equivalent to more traditional media of expression. As merchandise, games are not like books; they are instead like celebrity embossed coffee mugs. According to this view, games are essentially, to borrow a British term, “mere image carriers.” These three decisions confirmed the “settled order of things”: a license is required to use someone’s name or likeness (i.e., identity) in a game. 

We argue that the three classic cases and the rule they produced are anachronisms. The licensing tradition created — or at least reinforced — by these decisions should carry no weight. These cases were questionable when decided. They are even more so now. Games as a medium have evolved significantly over the past four decades, calling into question the longstanding treatment of games for purposes of the right of publicity. Games in general are ready to be considered alongside other expressive works. While it is possible for a particular game to be a mere image or identity carrier of a person’s identity, games are often much more. For purposes of the right of publicity, games are not like coffee mugs.

Download the article from SSRN at the link.

June 29, 2012 | Permalink | TrackBack (0)

Tuesday, June 26, 2012

Technical Advisory Board Releases First Responder Interoperability Technical Requirement Recommendations

Press Release from the FCC:

Today, the Federal Communications Commission (Commission or FCC) approved for
transmittal to FirstNet the minimum technical requirements submitted by the Technical Advisory Board for
First Responder Interoperability (Interoperability Board).   The report entitled “Recommended Minimum
Technical Requirements to Ensure Nationwide Interoperability for the Nationwide Public Safety Broadband
Network” (Interoperability Board Report or Report) sets forth the recommended minimum technical
requirements for interoperability. 
The Spectrum Act, passed in February 2012, established the First Responder Network Authority (FirstNet) to
oversee all actions necessary to ensure the building, deployment and operation of the nationwide public
safety broadband network.  The Act also established the Interoperability Board to develop recommended
minimum technical requirements to ensure a nationwide level of interoperability for the nationwide public
safety broadband network. The Commission approves for transmittal to FirstNet the Interoperability Board’s
final report and delegates authority to the Public Safety and Homeland Security Bureau to transmit the report
to FirstNet.
Action by the Commission June 21, 2012, by Order (FCC 12-68). Chairman Genachowski, Commissioners
McDowell, Clyburn, Rosenworcel and Pai.  Separate statements issued by Commissioners Rosenworcel and
For further information, contact Jennifer A, Manner, Deputy Chief, Public Safety and Homeland Security
Bureau at (202) 418-3619 or
For more news and information about the FCC
please visit

Recommendations of the Interoperability Board

June 26, 2012 | Permalink | TrackBack (0)

News Corp May Split Into News and Entertainment Companies

Rupert Murdoch is apparently thinking about breaking up his News International Corporation into two different companies. According to a number of media reports, the two new companies would be made up of a publshing company and an entertainment company. Both would still be controlled by Mr. Murdoch and his family. More here from the Greenslade Blog, the New York Times, and the Toronto Sun.

News Corp and its papers have been the focus of the UK's Leveson Inquiry phone hacking investigation over the past months. The Atlantic's Derek Thompson spectulates that the investigation isn't really the reason for a potential split. What may be propelling a reorganization, if it comes about, is falling revenue. More here.


June 26, 2012 | Permalink | TrackBack (0)

Protecting False Reputations and Valuing Free Speech

John A. Humbach, Pace University School of Law, has published Privacy Rights: The Virtue of Protecting a False Reputation. Here is the abstract.

What is the virtue of protecting a false reputation? The thesis of this paper is that there is none. There is none, at least, that justifies the suppression of free speech. Yet, there is a growing trend to see the protection of reputation from truth as a key function of the so-called “right of privacy.” 

Unfortunately, people often do things that they are not proud of or do not want others to know about. Often, however, these are precisely the things that others want or need to know. For our own protection, each of us is better off being aware of the negative or less-than-flattering qualities of others with whom we deal. 

The things that people say about each other are protected by the Constitution as much as any other form of expression. The Supreme Court has recognized repeatedly that the judgment embodied in the First Amendment is that the benefits of a free flow of information outweigh the costs and that those who speak truthfully cannot be made to do so at their peril. Therefore, disclosures of truthful information cannot, in the name of “privacy,” be constitutionally subjected to after-the-fact governmental determinations that they were not justified, unnecessary or even a crime. 

Perhaps there are things that it is better for us not to see or hear. But the assumption of the First Amendment is that government should not be deciding these limitations on the free flow of information or what speech is important enough to be “worth it.” If, in the name of protecting privacy or reputations, government agencies can decide after the fact what is and is not legitimate negative information, self-censorship will abound and valuable information will suffer. 

For a much more complete (and perhaps less contentious) treatment of privacy rights and the First Amendment, see my “Privacy and the Right of Free Expression,” available at SSRN: 1996581. 

Note: This paper is based on presentations at the annual conference of the Law and Society Association, held in Honolulu, HI on June 5-8 2012 and, at a conference, “Perspectives on Privacy,” held at Johannes-Gutenberg University, Mainz, Germany, on June 23-24, 2011.

Download the paper from SSRN at the link.

June 26, 2012 | Permalink | TrackBack (0)

Free Speech and Leakers

Heidi Kitrosser, University of Minnesota, Twin Cities, School of Law, has published Free Speech Aboard the Leaky Ship of State: Calibrating First Amendment Protection for Leakers of Classified Information, in volume 6 of the Journal of National Security Law & Policy (2012). Here is the abstract.

The Obama Administration has initiated six prosecutions of government employees for leaking classified information. This is double the number of prosecutions brought by all previous administrations combined. The rise in prosecutions, coupled with other developments – most notably a series of disclosures from the website wikileaks – has brought a renewed focus to the first amendment status of classified information and those who disseminate it. Most of the attention and concern, however, has centered on the protections due non-governmental third parties who publish information that is leaked to them. When their attention turns to leakers, commentators most often argue or assume that leakers can be prosecuted with little or no constitutional difficulty, given their special positions of trust with respect to classified information. This Article challenges that conventional view. It argues that government insiders who leak classified information merit robust, albeit certainly not unlimited, constitutional protections from prosecution. It also explains that the government should have greater constitutional leeway to punish leakers through administrative sanctions tied to leakers’ insider status – for example, through dismissal from employment or security clearance removal – than through criminal penalties. The Article defends these points on grounds of constitutional text, structure, and principle in their own right and as applied to the realities of the classification system. It also analyzes judicial doctrine, explaining that while aspects of it bode poorly for leaker protections from prosecution, the overall doctrinal picture is far less bleak for leakers than is often assumed.

Download the article from SSRN at the link.

June 26, 2012 | Permalink | TrackBack (0)

Jurisdiction and New York Times v. Sullivan

Howard M. Wasserman, Florida International University College of Law, has published A Jurisdictional Perspective on New York Times v. Sullivan: An Essay in Honor of Martin Redish in volume 107 of the

New York Times v. Sullivan, arguably the Supreme Court's most significant First Amendment decision, marks its 50th anniversary in 2014. Often-overlooked in discussions of the case's impact on the freedom of speech is that it arose from a complex puzzle of constitutional, statutory, and judge-made jurisdictional and procedural rules. These kept the case in hostile Alabama state courts for four years and a half-million-dollar judgment before The Times and its civil-rights-advocate co-defendants finally could avail themselves of the structural protections of federal court and Article III judges. The case's outcome and the particular substantive First Amendment rules it established are a product of this jurisdictional and procedural background.

This article is a contribution to Northwestern Law Review's Festschrift in Honor of Martin H. Redish, a scholar who has produced a record of influential and cutting-edge scholarship on civil procedure, federal jurisdiction, and the First Amendment. He also has been a sharp and unforgiving critic of many of the jurisdictional rules that kept this case out of federal court for so long. It is appropriate to recognize Redish's scholarly legacy by considering a landmark case at the intersection of his three scholarly pursuits that demonstrates why many of his arguments and criticisms are precisely correct.

Download the article from SSRN at the link.


June 26, 2012 | Permalink | TrackBack (0)

Monday, June 25, 2012

Iraqi Media Regulatory Authority Tells Broadcasters To Close Down Over Failure To Pay For Licenses

From, news that Iraq is ordering numerous media outlets to close because of a dispute over licensing fees. The Iraqi licensing authority Communications and Media Commission is currently negotiating with the companies, which include such heavyweights as the BBC and the Voice of America, over payments, and broadcasts are apparently continuing as usual.

June 25, 2012 | Permalink | TrackBack (0)

Copyright and Creative Control

Michael W. Carroll, American University College of Law, has published Copyright’s Creative Hierarchy in the Performing Arts, at 4 Vand. L. Ent. & Tech. L. 797 (2012).  Here is the abstract.

Copyright law grants authors certain rights of creative control over their works. This Article argues that these rights of creative control are too strong when applied to the performing arts because they fail to take account of the mutual dependence between writers and performers to fully realize the work in performance. This failure is particularly problematic in cases in which the author of a source work, such as a play or a choreographic work, imposes content-based restrictions on how a third party may render the work in performance. This Article then explores how Congress might craft a statutory license to mitigate this unequal treatment.

Download the article from SSRN at the link.

June 25, 2012 | Permalink | TrackBack (0)

Man Sentenced To More Than Eleven Years For Threatening "South Park" Creators

The U.S. Attorney for the Eastern District of Virginia has announced that Jesse Curtis Morton has pled guilty to and has been sentenced for using the Internet for "to incite fear and terror by encouraging violence and radicalization...". According to a press release from the U.S. Attorney's office,

According to court records, in 2007, Morton founded Revolution Muslim, an  organization that operated internet platforms and websites supportive of  violent extremism. Morton and his associates used the organization’s websites  to encourage Muslims to engage in violence against those they believed to be  enemies of Islam and to support Osama bin Laden, Anwar Al-Awlaki, al-Qaeda, the  Taliban, and others espousing violence. They posted messages in support of the  terrorist attacks on Sept. 11, 2001, the November 2009 killings at Ft. Hood and  attacks and future threats against Jewish organizations, among others.

Through his online forums, Morton  conspired with Zachary Chesser, of Fairfax County, Va., and others to solicit  the murder of an artist tied to the “Everybody Draw Mohammed Day” movement in  May 2010, including posting online a magazine that included the artist in a hit  list for violent extremists to take out and a message from Anwar Al-Awlaki that  explicitly called for the artist’s assassination. In justifying these actions,  Morton posted online a speech of his asserting that “Islam’s position is that  those that insult the Prophet may be killed” and exhorting his listeners to  fight the “disbelievers near you.”

In addition, Morton admitted that he  aided Chesser in taking repeated steps in April 2010 to encourage violent  extremists to attack the writers of South Park for an episode that featured  Muhammad in a bear suit, including highlighting their residence and urging online  readers to “pay them a visit.”  Among the  steps they took were posting on multiple occasions speeches by Anwar Al-Awlaki,  which explained the Islamic justification for killing those who insult or  defame Muhammad. Morton worked with Chesser to draft a message for the website  regarding the South Park threats, including a quote from Osama bin Laden that  “If there is no check in the freedom of your words, then let your hearts be  open to the freedom of our actions.” Morton and Chesser posted the final version  of this statement on various extremist online forums, and Chesser told Morton  that he expected the statement would “scare the kuffar.” Kuffar is an Arabic  term, referring to an unbeliever, or disbeliever, in Islam.

More here from the Hollywood Reporter. Here's a link to the plea agreement.

June 25, 2012 | Permalink | TrackBack (0)

Sunday, June 24, 2012

Five Films About the Media

CNN's John P. Avlon offers his list of five movies that "get it right" when it comes to depicting life in the newsroom. See the list here.

June 24, 2012 | Permalink | TrackBack (0)

Friday, June 22, 2012

Facebook Still Trying to Settle "Sponsored Stories" Lawsuit

An update on the "Sponsored Stories" settlement, from the New York Times. Changes to the settlement agreement require that Facebook disclose to users that clicking "Like" will allow the company to use their "like"nesses to advertise a product. Users also have a chance to opt out, an action which could cost the company millions in ad revenue.

June 22, 2012 | Permalink | TrackBack (0)

NYT Reports On Fox v. FCC Ruling

Thursday, June 21, 2012

Technology and the First Amendment

Christopher S. Yoo, University of Pennsylvania Law School & University of Pennsylvania Annenberg School for Communication, University of Pennsylvania School of Engineering and Applied Science, has published Technologies of Control and the Future of the First Amendment at 53 William & Mary Law Review 747 (2011). Here is the abstract.


The technological context surrounding the Supreme Court’s landmark decision in FCC v. Pacifica Foundation allowed the Court to gloss over the tension between two rather disparate rationales. Those adopting a civil libertarian view of free speech could support the decision on the grounds that viewers’ and listeners’ inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. The arrival of filtering technologies has introduced a wedge between those who supported the constitutionality of indecency regulations out of a desire to enhance individual autonomy and those who wish to restrict speech in order to promote a particular vision of the public good. At the same time, commentators on the political left have begun to question whether continued support for the classic liberal vision of free speech may be interfering with the advancement of progressive values. 

This Article offers a qualified defense of the libertarian vision of free speech. Deviating from the civil libertarian view would require a revolution in doctrine and would contradict the postulate of independent moral agency that lies at the heart of liberal theory. Although some suggested institutions for ascertaining the idealized preferences that individuals ought to have could justify allowing the government to override individuals’ actual preferences, such an approach is all-too reminiscent of the Rousseauian notion of being “forced to be free” and has never been accepted by the Supreme Court. Finally, claims that private censorship presents risks commensurate with public censorship fail to address the fact that liberal theory presupposes the existence of a private sphere into which the state cannot intrude, as well as the long tradition recognizing the special dangers associated with the coercive power of the state. Moreover, the rationales upon which the Supreme Court has relied to justify overriding individual preferences in broadcasting and cable have been undermined by technological change.

Download the article from SSRN at the link.

June 21, 2012 | Permalink | TrackBack (0)