Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, February 29, 2016

Lebovic on Free Speech and Unfree News

Sam Lebovic, Assistant Professor of History, George Mason University, has published Free Speech and Unfree News (Harvard University Press, 2016). Here is a description of the contents from the publisher's website.

Does America have a free press? Many who answer yes appeal to First Amendment protections that shield the press from government censorship. But in this comprehensive history of American press freedom as it has existed in theory, law, and practice, Sam Lebovic shows that, on its own, the right of free speech has been insufficient to guarantee a free press. Lebovic recovers a vision of press freedom, prevalent in the mid-twentieth century, based on the idea of unfettered public access to accurate information. This “right to the news” responded to persistent worries about the quality and diversity of the information circulating in the nation’s news. Yet as the meaning of press freedom was contested in various arenas—Supreme Court cases on government censorship, efforts to regulate the corporate newspaper industry, the drafting of state secrecy and freedom of information laws, the unionization of journalists, and the rise of the New Journalism—Americans chose to define freedom of the press as nothing more than the right to publish without government censorship. The idea of a public right to all the news and information was abandoned, and is today largely forgotten. Free Speech and Unfree News compels us to reexamine assumptions about what freedom of the press means in a democratic society—and helps us make better sense of the crises that beset the press in an age of aggressive corporate consolidation in media industries, an increasingly secretive national security state, and the daily newspaper’s continued decline.

Free speech and unfree news

February 29, 2016 | Permalink

Thursday, February 25, 2016

Borgesius on Data Protection Regulation and Behavioral Targeting

Frederik J. Zuiderveen Borgesius, University of Amsterdam, IViR Institute for Information law (IViR), has published Singling Out People Without Knowing Their Names – Behavioural Targeting, Pseudonymous Data, and the New Data Protection Regulation. Here is the abstract.

Information about millions of people is collected for behavioural targeting, a type of marketing that involves tracking people’s online behaviour for targeted advertising. It is hotly debated whether data protection law applies to behavioural targeting. Many behavioural targeting companies say that, as long as they do not tie names to data they hold about individuals, they do not process any personal data, and that, therefore, data protection law does not apply to them. European Data Protection Authorities, however, take the view that a company processes personal data if it uses data to single out a person, even if it cannot tie a name to these data. This paper argues that data protection law should indeed apply to behavioural targeting. Companies can often tie a name to nameless data about individuals. Furthermore, behavioural targeting relies on collecting information about individuals, singling out individuals, and targeting ads to individuals. Many privacy risks remain, regardless of whether companies tie a name to the information they hold about a person. A name is merely one of the identifiers that can be tied to data about a person, and it is not even the most practical identifier for behavioural targeting. Seeing data used to single out a person as personal data fits the rationale for data protection law: protecting fairness and privacy.

Download the abstract from SSRN at the link.

February 25, 2016 | Permalink

Wednesday, February 24, 2016

El Ghoul, Guedhami, Nash, and Patel on the Role of the Media In Corporate Social Responsibility

Sadok El Ghoul, University of Alberta, Campus Saint-Jean, Omrane Guedhami, University of South Carolina School of Business, Robert C. Nash, Wake Forest University, and Ajay Patel, Wake Forest University School of Business, have published New Evidence on the Role of the Media in Corporate Social Responsibility. Here is the abstract.

Prior research suggests that the media plays an important information intermediary role in capital markets. We investigate the role of the media in influencing firms’ engagement in corporate social responsibility (CSR) activities. Using a large sample of 4,453 unique firms from 53 countries over the period 2003 to 2012, we find strong evidence that firms engage in more CSR activities if located in countries where the media has more freedom. This relation is robust to using various proxies for media freedom and an alternative source of CSR data. In additional analyses, we find that the positive relation between media freedom and CSR engagement is stronger for better governed firms and for larger firms. Since the media have the ability to impact reputational capital, we conclude that media freedom affects firms’ incentives to engage in costly CSR activities.

Download the article from SSRN at the link.

February 24, 2016 | Permalink

Bernie Sanders and the Media

The New York Times reports here on Senator Bernie Saunders' continuing critique of the news media.

February 24, 2016 | Permalink

Stewart and Littau on Mobile Streaming Video Technologies, Privacy in Public Spaces, and the Right To Record

Daxton Stewart, Texas Christian University College of Communication, and Jeremy Littau, Lehigh University, are publishing Up, Periscope: Mobile Streaming Video Technologies, Privacy in Public, and the Right to Record in a special issue of Journalism and Mass Communication Quarterly (2015). Here is the abstract.

Mobile streaming video technologies (MSVTs) such as Meerkat and Periscope, which allow users an easily accessible way to stream live video to followers, have the potential to reshape the way people think about any right to privacy they may have in public places, as well as the rights of people to record video in public places. Using legal research methodology, this article examines the privacy law implications of MSVTs, finding that the intrusion upon seclusion tort is unequipped to provide remedies for potential privacy harms and that the First Amendment likely protects live streaming activities of users.


Download the article from SSRN at the link.

February 24, 2016 | Permalink

Thursday, February 18, 2016

FCC Issues NPRM To Open Up Set-Top Box Market

The FCC has issued a Notice of Proposed Rulemaking (NPRM) that begins the process of allowing third party entities to develop alternatives to the set-top boxes through which consumers receive subscription video programming. Nearly all pay-TV subscribers currently receive such programming through set-top boxes they rent from cable and satellite companies, and such rental fees average more than $230 per year for the average U.S. household.

Read more about the NPRM and the FCC's action here.

February 18, 2016 | Permalink

Wednesday, February 17, 2016

Jones and Lidsky on Libel Law in a Networked World

RonNell Andersen Jones, Brigham Young University Law School, and Lyrissa Barnett Lidsky, University of Florida College of Law, are publishing Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World in the Virginia Journal of Social Policy and the Law. Here is the abstract.

Social-media libel cases require courts to map existing defamation doctrines onto social-media fact patterns in ways that create adequate breathing space for expression without licensing character assassination. This Article explores these challenges by investigating developments involving two important constitutional doctrines — the so-called opinion privilege, which protects statements that are unverifiable or cannot be regarded as stating actual facts about a person, and the actual malice rule, which requires defamation plaintiffs who are public officials or public figures to prove that the defendant made a defamatory statement with knowledge of, or reckless disregard for, its falsity. Given the critical role these two constitutional doctrines play in protecting free expression, it is especially crucial that courts apply them in social-media cases with due regard for the unique aspects of the medium. This article’s analysis of early social-media cases reveals that many — though by no means all — courts addressing these cases appreciate that social media are different than the media that preceded them. However, some of these courts have floundered in adapting constitutional doctrines. The Article addresses the most difficult new issues faced by courts and offers specific prescriptions for adapting the opinion privilege and actual malice rule to social media. It recommends that the opinion privilege be applied based on a thorough understanding of both the internal and external contexts of social-media expression and that this broad reading of the opinion privilege be offset by a narrow reading of actual malice in cases involving delusional or vengeful social-media speakers.

Download the article from SSRN at the link.

February 17, 2016 | Permalink

Marais and Pretorius on the Hate Speech Provisions of the South African Equality Act

Maria Elizabeth Marais and Loot J. Pretorius, both of the University of the Free State Faculty of Law, have published A Contextual Analysis of the Hate Speech Provisions of the Equality Act at 18 Potchefstroom Electronic Law Journal 901 (2015). Here is the abstract.

The article presents a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Equality Act. It is argued that this provision is not primarily intended to describe and effectively regulate the extreme expression that falls within the narrow ambit of "hate speech" as defined in section 16(2)(c) of the Constitution. Rather, it is concerned with the promotion of equality in the broad societal context. It acknowledges the hurt and harm that discriminatory expression may entail and it condemns the reinforcement of systemic discrimination by means of expression. Therefore, the principal interpretive frame of reference for the analysis of section 10(1) of the Equality Act is the explicit constitutional obligation in terms of sections 9(3) and (4) of the Constitution to enact legislation to prevent and prohibit unfair discrimination, and not section 16(2)(c) of the Constitution. The fact that section 10(1) categorically prohibits hate speech, instead of premising its prohibition on the unfairness analysis generally applicable to discrimination in other contexts, however, implies that only expression with no reasonable prospect of meeting the constitutional fairness standard ought to be covered by section 10. Put differently, the prohibited expression may in no way promote rather than jeopardise the achievement of equality. The interpretation takes into account that section 10(1) applies only to engagement in expression that, in terms of an objective reasonableness assessment, is clearly primarily aimed at hurting or harming others, or at inciting others to hurt or harm, or at promoting hatred based on group identity. Furthermore, bona fide expression in accordance with the essential characteristics of the freedoms of expression mentioned in section 16(1) of the Constitution is explicitly excluded from its ambit. An analysis of the expression covered by section 10(1) leads to a conclusion that it prohibits only low-value discriminatory expression that obstructs the constitutional quest for the healing of our injured society. It manages to achieve this without jeopardising the constitutional guarantee of freedom of expression, construed in the light of the foundational values of the Constitution.

Download the article from SSRN at the link.

February 17, 2016 | Permalink

Walker and Depoorter on Aesthetic Judgments In Copyright Law

Robert Kirk Walker, University of California, Hastings College of the Law, and Ben Depoorter, University of California Hastings College of the Law and Ghent University, Center for Advanced Studies in Law & Economics, have published Unavoidable Aesthetic Judgments in Copyright Law: A Community of Practice Standard at 109 Northwestern University Law Review 343 (2015). Here is the abstract.

Aesthetic judgments are “dangerous undertakings” for courts, but they are unavoidable in copyright law. In theory, copyright does not distinguish between works on the basis of aesthetic values or merit (or lack thereof), and courts often go to great lengths to try to avoid artistic judgments. In practice, however, implicit aesthetic criteria are deeply embedded throughout copyright case law. The questions “What is art?” and “How should it be interpreted?” are inextricably linked to the questions “What does copyright protect?,” “Who is an author?,” “What is misappropriation?,” and many other issues essential to copyright. Although courts rarely (if ever) explicitly adhere to aesthetic principles in their decisions, the judicial logic used in copyright cases closely mirrors three major aesthetic theories: Formalism, Intentionalism, and Reader-Response. Unfortunately for courts, these theories are largely incompatible. Furthermore, none are sufficiently expansive to cover the variety of practices contained within a single artistic tradition, let alone the panoply of expressive mediums protected by copyright law. As a result, doctrinal inconsistencies abound (both inter- and intra-circuit), and the case law largely fails to provide clear guidance as to the scope of protection — and risk of liability — associated with different artistic practices. This Article examines how courts have applied aesthetic theories to resolve doctrinal issues concerning copyright eligibility, derivative works, useful articles, and statutory fair use. Based on this analysis, this Article argues that courts should adopt a uniform approach to aesthetic judgments from the perspective of a hypothetical “Community of Practice” capable of situating an expressive work in a specific artistic context.

Download the article from SSRN at the link.

February 17, 2016 | Permalink

Monday, February 15, 2016

Murchison on Speech and the Truth-Seeking Value

Brian C. Murchison, Washington and Lee University School of Law, has published Speech and the Truth-Seeking Value as Washington & Lee Legal Studies Paper No. 2016-7. Here is the abstract.

Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities — survival, progress, and character — without insisting on truth in an absolute or transcendent sense. Third, the law’s current treatment of truth-seeking in First Amendment cases turns on whether a case implicates the truth of the past, present, or future. Cases about past truth involve its knowability; cases about present truth involve its hiddenness; and cases about future truth involve its falsification. Because judicial treatment of truth-seeking in each of these groupings is underdeveloped, legal thought can benefit from literary works by three major novelists: Paul Scott, author of Staying On; Kazuo Ishiguro, author of Never Let Me Go; and Ian McEwan, author of Atonement. Each of these works clarifies an important aspect of the truth-seeking value of expressive freedoms. The Article concludes by considering the value’s limitations, focusing on the complex setting of campaign finance.

Download the article from SSRN at the link.

February 15, 2016 | Permalink

Pasquale on Reforming the Law of Reputation

Frank A. Pasquale III, University of Maryland School of Law, and Yale University Information Society Project, has published Reforming the Law of Reputation at 47 Loyola University (Chicago) Law Journal 515 (2015). Here is the abstract.

Unfair and deceptive practices of controllers and processors of data have adversely affected many citizens. New threats to individuals’ reputations have seriously undermined the efficacy of extant regulation concerning health privacy, credit reporting, and expungement. The common thread is automated, algorithmic arrangements of information, which could render data properly removed or obscured in one records system, nevertheless highly visible or dominant in other, more important ones. As policymakers reform the law of reputation, they should closely consult European approaches to what is now called the “right to be forgotten.” Health privacy law, credit reporting, and criminal conviction expungement need to be modernized for the digital age to reflect the power of aggregating intermediaries. Search engines, social networks, and other digital tools may maintain the salience and power of certain information long after formal processes have determined it to be untrue, irrelevant, or unfair. They must take on new responsibilities in order to reflect the values inherent in older schemes of reputation regulation.

Download the article from SSRN at the link.

February 15, 2016 | Permalink

Marin on Applicability of the Charter of Rights and Freedoms to Public Universities

Michael Marin, University of Ottawa, Common Law Section, is publishing Should the Charter Apply to Universities? in volume 35 of the National Journal of Constitutional Law (2015). Here is the abstract.

This article explores the unresolved issue of whether the Charter of Rights and Freedoms applies to public universities in Canada. The author considers the Supreme Court’s judgment in McKinney v. University of Guelph in the context of more recent jurisprudence on the application of the Charter, as well as divergent lower court judgments concerning restrictions on student expression. He argues that public universities in Alberta, British Columbia, and Ontario implement specific government policies and exercise statutory powers of a public nature, which should subject them constitutional scrutiny. He further demonstrates that the Charter’s application is reconcilable with institutional autonomy. By limiting constitutional review to the public decisions of universities and imposing the reasonableness standard, courts can protect Charter values without unduly intruding into operational activities. More fundamentally, the author argues that the continued treatment of universities as Charter-free zones is both indefensible as a matter of legal principle, and inconsistent with the preservation of academic freedom.

Download the article from SSRN at the link.

February 15, 2016 | Permalink

Bambauer on Freedom From Thought

Jane R. Bambauer, University of Arizona College of Law, has published Freedom from Thought at 65 Emory Law Journal 219 (2015). Here is the abstract.
This short Essay explores when ignorance can be supported or even coerced by law, and when it cannot. In the end, although freedom from thought has much to offer to the development of privacy and dignitary rights, interests in self-ignorance are better handled through norms than through law. Like other forms of privacy, First Amendment commitments are likely to frustrate legal efforts to support or coerce self-ignorance. If a speaker wishes to disclose information, the government is unlikely to be able to interfere with that disclosure unless the speaker’s interests are demonstrably weak. However, when both the speaker and the listener prefer silence, government compulsion of information disclosure will offend privacy and First Amendment principles alike.
Download the essay from SSRN at the link.

February 15, 2016 | Permalink

Thursday, February 11, 2016

Student Reporters and Their First Amendment Rights

Writing for the Chronicle of Higher Education, Peter Schmidt discusses a push to protect student journalists.

February 11, 2016 | Permalink

Wednesday, February 10, 2016

Dimopoulos, Mitchell, and Voon on The Tobacco Industry and FOIA Laws

Georgina Dimopoulos, Andrew D. Mitchell, and Tania S. L. Voon, all of the University of Melbourne Law School, are publishing The Tobacco Industry's Strategic Use of Freedom of Information Laws: A Comparative Analysis in the Oxford University Comparative Law Forum (2016). Here is the abstract.

This paper attempts to derive lessons from the freedom of information (FOI) laws in the United Kingdom, New Zealand and the United States for achieving an appropriate balance between transparency and government openness on the one hand and preventing abuse of the FOI system by powerful industries on the other. The paper focuses on the strategic use by the tobacco industry of FOI in these countries, concluding that reforms could reduce undue financial and human resource burdens on governments in dealing with overly broad requests. The ability to reject or limit such requests, to more closely align the costs to the applicant with the costs of processing the request, and to take account of the nature and purpose of the request could prevent deliberate abuse of the system. This paper was finalised in September 2015.

Download the essay from SSRN at the link.

February 10, 2016 | Permalink

Campbell on Speech-Facilitating Conduct

Wesley J. Campbell, Stanford Law School, is publishing Speech-Facilitating Conduct in volume 68 of the Stanford Law Review (2016). Here is the abstract.

Free speech doctrine generally protects only expression, leaving regulations of nonexpressive conduct beyond the First Amendment’s scope. Yet the Supreme Court has recognized that abridgments of the freedom of speech “may operate at different points in the speech process.” This notion of protection for nonexpressive conduct that facilitates speech touches on many of the most contentious issues in First Amendment law — restrictions on photography and audiovisual recording, limits on campaign contributions, putative news gathering privileges for journalists, compelled subsidization of speech, and associational rights, to name just a few. Scholars, however, have generally approached these topics in isolation, typically focusing on downstream effects on speech as the touchstone for First Amendment coverage. The usual conclusion is that the Supreme Court’s decisions are in disarray. This Article argues that key features of doctrine are easily overlooked when employing a granular focus on particular rights. Instead, the Article presents an overarching framework that brings together, descriptively and normatively, otherwise disparate strands of free speech law. The guiding principle of this framework is that First Amendment coverage for nonexpressive conduct depends on whether the government uses a rule that targets speech (e.g., a special tax on newspapers), not on whether expression is indirectly burdened by particular applications of otherwise constitutional rules (e.g., a child labor law applied to newspapers). Applications of this “anti-targeting” principle vary by context, but the general concept offers a surprisingly comprehensive account of most Supreme Court decisions. Tracing the development of the anti-targeting principle also reveals an underappreciated shift in the way that the Court has dealt with claims based on nonexpressive conduct. This historical argument shows that the reasoning in many of the Court’s foundational cases — including Buckley v. Valeo, Branzburg v. Hayes, Abood v. Detroit Board of Education, and Roberts v. United States Jaycees — is now out of step with current doctrine.

Download the article from SSRN at the link.

February 10, 2016 | Permalink

Rotunda on the Right of Dissent and America's Debt to Herodotus and Thucydides

Ronald D. Rotunda, Chapman University School of Law is publishing The Right of Dissent and America's Debt to Herodotus and Thucydides at 1 Revista Estudos Institucionais (Journal of International Studies) 144 (2015). Here is the abstract.

The United States prides itself as a country that respects free speech, the right of all persons to criticize the government even in times of war. However, it was not always so. The events related to World War I brought the first cases raising free speech issues to the U.S. Supreme Court. While several justices, in particular, Oliver Wendell Holmes, praised free speech, the Court upheld all the Government prosecutions of dissidents. It has taken nearly a century since those cases for the Supreme Court to come full circle and now protect those who criticize the Government in time of war. When the Court changed its views to create the modern protections, it relied on philosophical justifications for free speech that go all the way back to the ancient Greeks, 2,400 years ago. The modern justification for free speech relies on these philosophers from ancient Greece. There is little new under the sun. While governments typically believe that, for the public good, they must censor speech and squelch dissenters in time of war, the Greeks believed that their free speech made them stronger, not weaker. There are those who argue it is more difficult for a democracy to go to war because it cannot conduct the war successfully if the people oppose it and dissenters remain free to criticize. That is a good thing, not a bad thing. In modern times, no democracy has warred against another. As Pericles reminds us, “[t]he great impediment to action is, in our opinion, not discussion, but the want of knowledge that is gained by discussion preparatory to action.” As other countries embrace democracy and protections for dissidents, our increased freedoms should bring us more peace and less war.

Download the article from SSRN at the link. Cross-posted to the Law and Humanities Blog.

February 10, 2016 | Permalink

Strum on the Legacy of Justice Brandeis

Philippa Strum, Woodrow Wilson International Center for Scholars, is publishing Speech and Democracy: The Legacy of Justice Brandeis Today ("Louis D. Brandeis 100: Then and Now" at Brandeis University, 2016). Here is the abstract.

Justice Louis D. Brandeis's concurrence in Whitney v. California, later adopted by the U.S. Supreme Court, made American speech law the most permissive in the world. Its premise was that speech is crucial to the participation of Americans in democratic governance, and that the right to free speech was ineluctably tied to the responsibility of citizens to participate in the public sphere. Given both the relative lack of Americans' involvement in the democratic process and the problems presented by hate speech and by Internet phenomena such as cyber-bullying, revenge porn, and terrorist recruitment, is the Brandeis formulation still relevant for the 21st century?

Download the paper from SSRN at the link.

February 10, 2016 | Permalink

Juette on Copyright and Freedom of Expression in Europe

Bernd Justin Juette, University of Luxembourg, has published The Beginning of a (Happy?) Relationship: Copyright and Freedom of Expression in Europe in volume 38 of The E.I. P. R. (2016). Here is the abstract.

The relationship between the right to freedom of expression and copyright at European level has only recently been addressed in two cases, one before the European Court of Human Rights (Ashby Donald v France) and one before the Court of Justice of the EU (Deckmyn v Vandersteen). The relationship between both fundamental rights is analysed by comparing the approaches of both European courts in striking the balance between both fundamental rights. Both courts have, so far, not given either right priority over the other, and both continue to grant Member States a wide margin of discretion to strike the balance at the national level.

The full text is not available from SSRN.

February 10, 2016 | Permalink

Tuesday, February 2, 2016

California Appellate Court Upholds Courtney Love "Twibel" Jury Verdict

A California appellate court has upheld a jury verdict in favor of singer Courtney Love Cobain that her "twibel" statements about a former attorney didn't defame her, because although they were false, Ms. Love did not make them with actual malice, the standard required by law. Specifically at issue were Ms. Love's Twitter comments that Ms. Holmes, her former attorney, had been "bought off."

"Viewing the evidence in the light most favorable to Cobain, we conclude that there is substantial evidence to support the jury's finding that although Cobain's statement was false and injurious, Holmes failed to establish by clear and convincing evidence that Cobain knew the statement was false or had serious doubt about the truth of the statement." Read the ruling here.

Read the Hollywood Reporter's story here.

February 2, 2016 | Permalink