Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, July 23, 2012

The First Amendment and a Definition of the Press

Chris Edelson, American University, has published Lies, Damned Lies, and Journalism: Why Journalists are Failing to Vindicate First Amendment Values and How a New Definition of 'The Press' Can Help. Here is the abstract.

This article identifies a specific problem – journalists who fail to provide the public with the accurate information needed to foster informed public opinion – and offers a specific solution: defining “the press” to provide protections and prestige only to those whose work actually advances First Amendment values.

American journalistic norms facilitate lying by politicians, candidates for office, and other public figures. Because many journalists are committed to the ideal of balance over truth, they are often incapable of calling out lies. Instead, they create a false equivalence by suggesting there are two sides to every argument, even when one side is demonstrably false. Politicians and other public figures are able to exploit this reality by making false statements with impunity, secure in the knowledge that journalists will not expose their deceptions.

Scholars like Robert C. Post, Paul Horwitz, Mark Tushnet and others have recently focused on the questions of whether false statements contain constitutional value and when false statements may be regulated by the government. Although Post’s recent book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, does not focus on the problem of false statements disseminated by journalists, his concept of democratic competence is especially relevant to the problem of the balance trap. By extending press membership only to those journalists whose work advances First Amendment values of truth and democratic competence, we can move toward a press corps that truly informs the public by providing accurate information and exposing false statements by elected officials and other public figures. This approach does not depend on suppressing any speech: by turning to the Press Clause, it is possible to advance democratic competence simply by redefining the press, meaning that only competent journalists will receive the status and protections associated with press membership, while other journalists will be free to practice balance trap journalism but will be denied press status.

Changing the way journalists do their work depends on a new definition of the press. Other scholars have defined the press in institutional (Schauer, Horwitz) or functional (West) terms, but, while these definitions identify a number of important considerations, each deals far too often in abstractions, failing to consider the work journalists are actually doing and whether their work merits press status. As a result, each definition is both over- and under-inclusive, providing press membership to balance trap journalists and denying press membership to some journalists who recognize and reject the balance trap approach. 

This article does something new by putting forward a definition of the press that is based on specific examples of work journalists are doing, and proposing a way to assess whether this work advances First Amendment values of truth and democratic competence. In addition, while other scholars who believe that the press deserves specific protection seek to establish the basis for that protection solely or mainly through courts or legislatures, this article does something new by identifying a central role for journalists themselves in the process. 

Ultimately, the goal of this article is to give meaning to Oliver Wendell Holmes’s assertion that “the real justification of a rule of law is that it helps to bring about a social end which we desire.” Replacing balance trap journalism with journalism that gives Americans the accurate information they need to make informed decisions is a highly desirable social end. If we want to have a better press corps, we must begin with a definition of the press that has the potential to solve the balance trap problem by recognizing only members of the press whose work truly advances First Amendment values.


Download the paper from SSRN at the link.

July 23, 2012 | Permalink | TrackBack (0)

Friday, July 20, 2012

"Dark Knight " Paris Premiere Cancelled

The Hollywood Reporter reports that the producers and studio of "The Dark Knight Rises" have cancelled the Paris premiere of the film after the deadly attack on an Aurora, Colorado, movie theatre where the film was showing. Several of the stars of the film have also cancelled appearances planned in conjunction with the premiere.

July 20, 2012 | Permalink | TrackBack (0)

Sunday, July 15, 2012

Governments, Technology, and Privacy

Two interesting pieces in the New York Times today. Eric Lichtblau writes about increasing government requests to cell phone carriers for subscriber information in the past year. Cell phone providers say that law enforcement agencies made 1.3 million such requests last year, not all accompanied by warrants. In another article, Mr. Lichtblau and Scott Shane write about the FDA's interception of emails, letters, and other material sent by its own employees to media, members of Congress, and others, including the President. The agency was apparently trying to tamp down criticism of its performance and decisions to approve certain medical devices. Some of the scientists critical of the agency were fired and are now suing.

July 15, 2012 | Permalink | TrackBack (0)

Saturday, July 14, 2012

NAB Files To Stay FCC Order Requiring Disclosure of Sales of Political Ads

The National Association of Broadcasters has filed a motion to stay the FCC's order that television broadcasters publish their sales of political ads on a centralized site. Here is a link to the emergency motion. Here is a link to the FCC Order.

July 14, 2012 | Permalink | TrackBack (0)

Court: No Privacy Interest In Some Tweets: Twitter Must Hand Them Over

A New York trial court has ruled that there is no privacy interest in public tweets 180 days old or more. If the government wants to see public tweets newer than that, it should get a search warrant. The case is People v. Harris.

In general, court orders have no limitations on the types of information to be
disclosed (18 USC §2703[d]). The SCA mandates different standards that the
government must satisfy to compel a provider to disclose various types of
information (18 USC §2703). To compel a provider of ECS to disclose contents of
communication in its possession that are in temporary "electronic storage" for
180 days or less, the government must obtain a search warrant (18 USC §2703[a]).
A court order must compel a provider of ECS to disclose contents in electronic
storage for greater than 180 days or to compel a provider of RCS to disclose its
contents (18 USC §2703[a], [b], and [d]). The law governing compelled disclosure
also covers the above mentioned non-content records. The rules are the same for
providers of ECS and RCS and the government can obtain a §2703(d) order to
compel such non-content information (18 USC §2703 [c][1][B]).

July 14, 2012 | Permalink | TrackBack (0)

Chicago Tribune Out of Bankruptcy

The Chicago Tribune emerges from bankruptcy after nearly four years, with the blessings of a judge. More here from the Hollywood Reporter.

July 14, 2012 | Permalink | TrackBack (0)

Those Expensive Pocket Trackers

The New York Times on how our cell phones have become expensive peek-yous.  Peter Maass and Megha Pajagopalan suggest we call cell phones what they are--"trackers.

July 14, 2012 | Permalink | TrackBack (0)

Wednesday, July 11, 2012

King Pardons Translator

The King of Thailand has pardoned Joe Gordon, an American citizen, who was convicted last year of lese-majeste for translating parts of a biography of the sovereign and posting it on his blog. The book, The King Never Smiles, is banned in Thailand.

July 11, 2012 | Permalink | TrackBack (0)

Tuesday, July 10, 2012

Ofcom Investigating "Big Brother" Complaints

The UK regulator Ofcom is looking into complaints that Channel 5's show Big Brother has aired racist incidents after the show aired episodes which included scenes of contestants who called one black competitor a "gorilla" and another, the current Miss India UK, an expletive. Ofcom has received nearly 1500 complaints about the show this season. This is the second time in recent seasons that the show has caused a sensation; in 2007 when the show aired on Channel 4, it received more than 45,000 complaints over comments made by the late Jade Goody and others to Bollywood star Shilpa Shetty. Members of the House of Commons eventually took notice and Channel 4 investigated and Ofcom investigated. Ofcom eventually ruled that Channel 4's handling of the incidents was inappropriate.


July 10, 2012 | Permalink | TrackBack (0)

Saturday, July 7, 2012

Diana Documentary Shelved "In Perpetuity"

The Guardian reports that the controversial documentary on Princess Diana's death, Unlawful Killing, won't be making it into theaters, even though it was screened at the Cannes Film Festival. Producers could not get worldwide indemnification insurance, which posed libel risks for them in the UK. The movie, which was backed financially by Mohamed Al-Fayed, has been shelved "in perpetuity." Meanwhile, a Diana biopic, starring Naomi Watts, moves ahead.

July 7, 2012 | Permalink | TrackBack (0)

Friday, July 6, 2012

"Happy Days" Cast, CBS, Paramount, Settle Dispute Over Royalties

Four cast members, along with the widow of Tom Bosley, from the long running sitcom Happy Days have settled their dispute with CBS and Paramount Pictures over royalties they allege were not paid them under a contract. The four--Anson Williams, Marion Ross, Erin Moran, and Donny Most--claim that they were entitled to payments for use of their images on merchandise including DVDs under the contract, but never received those payments. The lawsuit was set for trial on July 17th. The actors said they are satisfied with the outcome of the undisclosed settlement. More here from CNN.

July 6, 2012 | Permalink | TrackBack (0)

Seventh Circuit Vacates Lower Court's Decision in Chicago Tribune Case Against University

The Seventh Circuit has vacated a lower court's judgment in favor of the Chicago Tribune and against the University of Illinois, in which the newspaper sought access to some of the university's documents under a federal statute. The court held that the newspaper needed to file its claim under state law. The case involves the Tribune's series of "clout scandal" articles.

The briefs of both sides in this court contend that 28 U.S.C. §1331, the federal-question jurisdiction, supplies subject-matter jurisdiction for this suit. The district judge must have assumed likewise. But the United States, whose brief as amicus curiae supports the University's understanding of the 1974 Act, also observes that there is serious doubt about subject-matter jurisdiction, because the Tribune's claim to the documents arises under state rather than federal law. The University may have a federal defense to the Tribune's claim, but it is blackletter law that a federal defense differs from a claim arising under federal law. See, e.g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986). And although the University, as the natural defendant in state court, might have been able to seek a federal declaratory judgment under the mirror-image doctrine applicable to declaratory litigation, see NewPage Wisconsin System Inc. v. United Steel Workers, 651 F.3d 775 (7th Cir. 2011) (collecting authority), the Tribune rather than the University commenced this suit. The Tribune is the natural plaintiff and cannot use 28 U.S.C. §2201, the declaratory-judgment statute, to have a federal court blot out a potential federal defense to its own potential state-law suit. See, e.g., Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 16 (1983); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667 (1950).

We asked the parties to file supplemental briefs addressing subject-matter jurisdiction. Both sides contend that jurisdiction is proper under the approach of Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005). Yet Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677 (2006), shows that Grable does not alter the rule that a potential federal defense is not enough to create federal jurisdiction under §1331. See also Bennett v. Southwest Airlines Co., 484 F.3d 907, rehearing denied, 493 F.3d 762 (7th Cir. 2007). Some of the language inGrable could be read to say that all important federal issues should be resolved in a federal forum, but Empire Healthchoice concluded that Grable should not be so understood.

Indeed, Grable has nothing to do with using federal defenses to move litigation to federal court. In Grable the federal issue was part of the plaintiff's own claim. The Internal Revenue Service had seized real property to satisfy a tax lien and sold the property to Darue. Grable, the taxpayer, filed a quiet-title action in state court, asserting that Darue's title was invalid because the IRS had given notice of the seizure in the wrong way (by certified mail rather than a process server). The Supreme Court had to decide whether a claim “arises under” federal law for the purpose of §1331 when one element of a claim depends on state law and another on federal law. It concluded that the claim is federal when “a state-law claim necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of Page 1938 federal and state judicial responsibilities.” 545 U.S. at 314. This formulation can lead to problems in application, see Samuel C. Johnson 1988 Trust v. Bayfield County, 649 F.3d 799 (7th Cir. 2011), though often matters will be straight-forward. In Empire Healthchoice, for example, the Court observed that Grable depended on the fact that the dispute “centered on the action of a federal agency (IRS) and its compatibility with a federal statute, the question qualified as ‘substantial,’ and its resolution was both dispositive of the case and would be controlling in numerous other cases.” 547 U.S. at 700. Take away those ingredients—none was satisfied in Empire Healthchoice—and there is no federal jurisdiction.

Here, unlike Grable, the claim for the documents arises under state law, and only state law; the Tribune's request for the information does not depend on even a smidgeon of federal law. No federal agency's decision has been contested. The University has a potential defense under §7(1)(a), but even that may depend on state rather than federal law. (We expand on this observation below.) The §7(1)(a) exemption is not necessarily dispositive. Recall that the University's letter rejecting the Tribune's request mentioned §7(1)(b)(i), which entitles student records to protection. It is not clear to us that the 1974 Act and the implementing regulations forbid disclosure of any document that is outside the scope of the §7(1)(b)(i) exemption. A state court therefore might rule in the University's favor wholly as a matter of state law—which suggests that the federal issue not only is not “necessarily” presented, but may never be presented at all, rendering a federal court's decision nothing but an advisory opinion. The University has other potential state-law defenses as well.

The case is Chicago Tribune v. Board of Trustees, University of Illinois.

July 6, 2012 | Permalink | TrackBack (0)

Thursday, July 5, 2012

Israeli Government, Reporter, Reach Plea Deal

The Israeli government has reached a deal with a reporter and his newspaper that will spare the reporter a long jail sentence over charges that he is in possession of government secrets. Instead, the reporter, Uri Blau, might be sentenced to community service for receiving information from a soldier since convicted for spying. Many reporters were worried that if the government pursued charges against Mr. Blau, it would be difficult for the press to report on such issues. More here from Reuters.

July 5, 2012 | Permalink | TrackBack (0)

German Broadcasting Heads Complain Over UEFA Footage

Heads at Germany's state-run tv networks are complaining to UEFA (the Union of European Football Association) about footage provided for the recent match between Germany and Italy that seemed to show a German fan crying over her team's performance. In reality, she was moved to tears over the playing of the German national anthem at the start of the match. This footage was then inserted later in the broadcast.

Dieter Gruschwitz, who works for ZDF, told UEFA this use of film was unacceptable.  "Because here it was suggested to the viewer that a scene – the woman with tears – was a direct result of the situation that had just happened, namely the Italians' goal." He added: "This is without a doubt a manipulation".

More here from the Guardian.

July 5, 2012 | Permalink | TrackBack (0)

Twitter's Transparency Report, July 2012

Twitter has released its first report on takedown requests. The data covers the period Jan. 1, 2012 to June 30, 2012, and lists requests from users in all sectors. Link here. The company says it plans to release such a report twice a year from now on.

July 5, 2012 | Permalink | TrackBack (0)

Tuesday, July 3, 2012

Race, Religion, and Xenophobia

Jonathan C. Augustine, United Theological Seminary, and Roslyn Satchel Augustine have published Religion, Race and the Fourth Estate: Xenophobia in the Media Ten Years after 9/11 at 1 Tennessee Journal of Race, Gender, & Social Justice 1 (2012). Here is the abstract.

September 11, 2011 marked the tenth anniversary of the most horrific attacks in the United States. In the decade after the September 11, 2001 attacks (9/11), matters of race and religion maintained an awkwardly prominent role in American culture, with the media arguably fueling perceptions. This interdisciplinary Article’s thesis is that media elites, most of which are large corporations, threaten American democracy with xenophobic influence in an age of unmediated communication. Thus, the frequent imagery of “us” versus “them” has exasperated religious tensions between Judeo-Christian faith groups and religious minorities. 

In the wake of the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, corporate media entities are now able to control the news and the newsmaker, with free speech that has become very costly. Indeed, empirical studies and research show that media has misused its trusted status as the proverbial “fourth branch of government,” because of capitalism and consumerism. Moreover, in an effort to increase ratings and associated advertising dollars, media has reinforced stereotypes by marketing and essentially selling fear as part of the War on Terror. The authors seek to prove their thesis by emphasizing the historical significance of the First Amendment’s individual protections, examining deregulation and the media’s profit-making interests, and criticizing the Citizens United decision as creating an inherent conflict of interest for media corporations, considering their proven interest in “selling” news for pecuniary gain.

Download the article from SSRN at the link.

July 3, 2012 | Permalink | TrackBack (0)

Washington Law Review Publishes an Issue On the First Amendment

The Washington Law Review has published its June 2012 issue, devoted to The Guardians of Knowledge in the Modern State: Post’s Republic and the First Amendment.

July 3, 2012 | Permalink | TrackBack (0)

George Carlin/First Amendment Cat

Monday, July 2, 2012

FCC Releases Video Description Rules For Certain Broadcast Stations

From the FCC:

The Twenty-First Century Communications and Video Accessibility Act of 2010, signed into law by President Obama on October 8, 2010, directed the Commission to reinstate with some modifications the video description rules initially adopted in 2000. The FCC’s new rules require covered broadcast affiliates of ABC, CBS, FOX and NBC located in the top 25 TV markets to provide 50 hours per calendar quarter (approximately 4 hours per week) of video-described prime time and/or children’s programming.

The covered MVPD systems, when they carry any of the top five non-broadcast networks,   Disney Channel, Nickelodeon, TBS, TNT, and USA, must also provide 50 hours per calendar of videodescribed prime time and/or children’s programming.

Additionally, the video description rules require all network-affiliated broadcast stations and MVPD systems to pass through any video description provided with network programming that they carry if they have the technical capability to do so and are not using it for other program-related content. Once a program is aired with descriptions, re-runs of that program must also include video description unless the capability of providing description is being used for other program-related content.

The Twenty-First Century Communications and Video Accessibility Act is the most significant  disabilities legislation since passage of the American with Disabilities Act,” said Chairman Julius Genachowski. “In implementing its video description provisions, the Commission is ensuring that for the first time, individuals who are blind or visually impaired will be able to enjoy many television programs along with the rest of the general public.”

FCC Commissioner Jessica Rosenworcel released a statement.

"With the start of this month, we reach a new milestone in accessibility with video description. It has been a long time in the making. After all, it was 22 years ago that the Americans with Disabilities Act first became law. It was more than a decade ago that the FCC first plowed new ground and required video description to accompany popular television programming. Though the courts brought this early progress to a halt, Congress stepped in to right this wrong with additional authority and a groundbreaking new law—The Twenty-First Century Communications and Video Accessibility Act.

“Though there has been delay, the benefit is no less sweet. Now, more than 21 million visually-impaired Americans will be able to access television programming with video description. This widens the range of news and entertainment options available to the visually impaired and helps facilitate full participation in Twenty-First century life.

"We would not have reached this point without the cooperative work of so many providers and distributors of video programming and the tireless advocacy of so many champions in the disabilities community. Today’s establishment of the National Deaf-Blind Equipment Distribution Program is more proof positive that the good work continues. I look forward to continuing to work with all stakeholders to see that the implementation of the Twenty-First Century Communications and Video Accessibility Act continues to expand access to communications technologies and opportunities across the country.”


July 2, 2012 | Permalink | TrackBack (0)

From Across the Pond: A View of Posner

The Guardian's John Naughton looks at Richard Posner's dismissal of Apple's patent infringement lawsuit against Google here. He says "there are good grounds to argue that Judge Posner is "the most infuriating man on the surface of the planet, but they are not the ones you'd expect....[T]he problem with Posner is not his awfulness, but the reverse: his astonishing intelligence, energy and provocative creativity."

Mr. Naughton says Judge Posner cut to the chase, noting that Apple had no legal argument, and that neither side had shown damages. Says Mr. Naughton,

This is a landmark judgment, one of those moments when someone – in this case an eminent judge rather than a small child – points out that the emperor is indeed stark naked. Patent wrangling between technology companies has become both pathological and pointless. It is also a gross abuse of intellectual property law that uses the courts as tools for gaining competitive advantage. The people who should be deciding whether Apple's phones are better – more functional, reliable, easier to use – than Motorola's are consumers, not judges. By striking a blow for common sense in what had become a madhouse, Posner has set a really encouraging precedent. The only downside is that he will now probably write a book about it. And I bet it will be a bloody good read too. Some people are just too annoying for words.

July 2, 2012 | Permalink | TrackBack (0)