Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, February 28, 2017

Bhagwat on When Speech Is Not "Speech"

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, is publishing When Speech is Not 'Speech' in the Ohio State Law Journal. Here is the abstract.

First Amendment law has reached a crossroads. Over the past several years, the Supreme Court has made three analytic moves that, in combination, are putting unsustainable pressure on its current doctrinal structure. First, the Court appears to be defining the word “speech” expansively, to include all forms of communication and information sharing. Second, the Court has severely limited the scope of “low-value” speech, suggesting that except for a few historically defined categories of speech, all oral and written communication deserves full constitutional protection. Third, the Court has held that any law or regulation that regulates protected speech based on its content must be subject to extremely stringent, “strict” scrutiny, and is presumptively unconstitutional. The result is that under current law, it is exceedingly difficult to regulate speech based on harms associated with its content except in a few, narrow, and usually irrelevant circumstances. This catholic approach to free speech protections, however, is unsustainable. The reason, quite simply, is that in the world of the Internet and modern computing, information and communication are instantaneously and universally shared, impossible to suppress or control, and at times highly dangerous or destructive. As a result, the harm associated with some forms of speech has been vastly magnified, at the same time that the Court has severely constrained the ability to regulate speech to prevent such harms. In addition, the primary commodity traded and stored in the new information economy — data — is technically “speech” on the Court’s current view, and so essentially immune from regulation. This tension is not sustainable. The solution, I would posit, is that we must reconsider what exactly constitutes “speech” for First Amendment purposes — in Fred Schauer’s words, we must reconsider the “coverage” of the First Amendment. Moreover, rather than excluding specific types of speech from coverage on an ad hoc fashion, as courts have done to date, we must develop a theoretical structure to guide those decisions. Otherwise, the entire free-speech project risks descending into judicial favoritism. This paper begins the task for identifying a methodology for defining First Amendment coverage. I begin by demonstrating that the word “speech” in the First Amendment does not, and cannot, literally refer to all uses of language. In particular, I note that language — both oral and written — can sometimes be used in non-communicative ways, and that such uses of language may not be constitutional “speech,” even if they are literally speech. I then discuss other situations where even acts of communication are and must be subject to extensive regulation based on their content for a variety of reasons. All language, then, is not “speech,” nor even is all communication. Ultimately, some gauge is necessary by which to judge when speech is, or is not, “speech.” Moreover, the only possible source of guidance in developing such a standard is free speech theory. Until now, the Supreme Court has refused to adopt an overarching theory of free speech, and scholars remain divided on the issue. Moving forward, however, this studious ambiguity is not sustainable. What is needed is a new paradigm, firmly rooted in the history, text, and purposes of the First Amendment. I ultimately conclude that the advancement of democratic self-government is the only plausible candidate for such an overarching theory. Such a reading of the First Amendment is supported by text, drafting history, and historical context, and enjoys widespread support among scholars. Once this understanding is accepted, however, it has profound implications for the question of First Amendment coverage. Even if one adopts a sophisticated and capacious view of what sorts of communicative activities are relevant to self-governance — an approach that I fully endorse — clearly not all uses of language qualify. The First Amendment poses no barriers to regulating such speech, because it is not “speech” within the meaning of the Constitution.

Download the article from SSRN at the link.

February 28, 2017 | Permalink

Monday, February 20, 2017

Did Dr. Seuss Enterprises Steal Matthew Lombardo's Christmas?

Peter B. Shapiro of Baker, Hostetler, discusses whether Matthew Lombardo's play Who's Holiday infringes Dr. Seuss Enterprises's (the rightsholder's) copyright in the popular children's book How the Grinch Stole Christmas, here, for Lexology.  At issue: whether the play, which follows the fortunes of Cindy Lou Who after the close of the book, is transformative and a parody. The plaintiff is advancing afair use defense. Link to the complaint here, via the Trademark Blog.  Mr. Lombardo filed his suit after the defendant sent cease and desist letters after which the plaintiff cancelled the performances of the play, which were scheduled during the 2016 holiday season.

Background here from the New York Times.

February 20, 2017 | Permalink

Lauriat on Walter v. Lane (1900), Originality, and Copyright Protection Under UK Law @KCL_Law

Barbara Lauriat, King's College London, is publishing Walter v. Lane (1900) in Landmark Cases in Intellectual Property Law, chapter 7 (Jose Bellido, ed., Hart Publishing, 2017). Here is the abstract.

Originality is a cornerstone of contemporary copyright law; in order to receive protection, works must be ‘original’. One of the persistent challenges for the courts has been identifying when a copy of a work can itself be an original work. This question of protecting copies of other works arose before originality was even a statutory requirement. In the seminal case of Walter v. Lane (1900), the House of Lords decided that verbatim reports in The Times of speeches given by the politician Lord Rosebery were protected under the existing copyright legislation. Walter v. Lane is a seminal copyright case still cited in 21st-century judgments. But it was also a principled personal conflict, with the Bodley Head publisher John Lane (1854-1925) and Liberal editor Charles Geake (1867-1919) on one side and Charles Frederic Moberly Bell (1847-1911), the Managing Director of The Times, on the other. This feud caused embarrassment and upset to Lord Rosebery himself, a friend to both Moberly Bell and Geake, who found himself caught in the middle. This chapter examines the legal and personal context of Walter v. Lane and challenges other interpretations of its holding. It argues that the primary legacy of the case comes from the principle that the law should protect works that are products of editing, re-creation, preservation, conservation, or reconstruction where they are the result of intellectual skill and labour and there exists a public interest in the relevant acts of copying.

Download the essay from SSRN at the link.

Cross-posted to the Law and Humanities Blog.

February 20, 2017 | Permalink

Berman on The Fourth Amendment and When Queries Are Searches @UHLAW

Emily Berman, University of Houston Law Center, has published When Queries are Searches as University of Houston Law Center No. 2017-W-1. Here is the abstract.

Due to limits on the scope of the Fourth Amendment and numerous exceptions to its warrant requirement, Fourth Amendment doctrine permits the government to collect a great deal of information about Americans with limited constitutional constraints. Both courts and commentators have recognized that this vast collection authority raises significant privacy concerns. The conventional response has been to suggest various modifications to the existing information-collection rules. Data collection, however, is only one part of the problem. The government’s post-collection use of information alone can — and often does — have equally disturbing privacy implications. The most troubling example has been labeled the “aggregation problem.” The aggregation and analysis of data in the government’s possession actually can result in revelations that could not have been gleaned from viewing those data in isolation. This article argues that, as a result, collection-focused solutions to privacy concerns — while valuable — are alone insufficient. They must be supplemented by rules regarding the government’s use of information. Where broad collection authority combines with the capacity to aggregate data in ways that reveal new information, the extraction of that information should be subject to constitutionally based limits. Specifically, this article focuses on one such extraction tool: database “queries.” When queries about U.S. persons are reasonably likely to expose knowledge about those individuals discoverable only by aggregating multiple pieces of data, such queries should be considered searches regulated by the Fourth Amendment. Both the purpose of the Fourth Amendment and the intrusive nature of the information that such queries can reveal support this conclusion. And while such an expansion of Fourth Amendment doctrine is no small undertaking, the Foreign Intelligence Surveillance Court’s oversight of government surveillance programs already provides a blueprint for how to implement this regulation.

Download the article from SSRN at the link.

February 20, 2017 | Permalink

Thursday, February 16, 2017

Colorado Newspaper Mulls Defamation Lawsuit Against State Legislator Over "Fake News" Twitter Statement @Samantha Barbas @DailySentinelGJ

Via @Samantha Barbas

The Washington Post reports that the (Grand Junction, Colorado) GJ Sentinel is ready to take Colorado State Senator Ray Scott to court over his statement that it prints "fake news." The Sentinel's publisher, Jay Seaton, said that the statement was defamatory because it is a statement of fact: "that the Daily Sentinel is a purveyor of fake news." Mr. Seaton,  an attorney, said the legislator's tweet that "We have our own fake news in Grand Junction" is provably false and made with malice.  More here from the Huffington Post and here from the local Fox News affiliate.

Read the Sentinel's response to Senator Scott's tweet here. Discussion here from Forbes.



February 16, 2017 | Permalink

Wednesday, February 15, 2017

West on Speaker-Based Classifications After Citizens United @sonjarwest

Sonja West, University of Georgia School of Law, has published Favoring the Press as University of Georgia School of Law Legal Studies Research Paper No. 2017-04. Here is the abstract.

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.” To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. The Court assumed that there is no constitutional difference between media corporations and other corporations and that if the government were able to limit the speech of some corporations, then it would also be free to censor the speech of media corporations. This was a thought that the majority called “dangerous, and unacceptable” and that Justice Antonin Scalia said “boggles the mind.” To the Citizens United majority, the news media corporation example settled the question on corporate speech rights, because any other rule would be unconstitutional speaker-based discrimination and open the doors for regulation of the news media. But was the Citizens United Court correct about the media corporation dilemma? Is the government no more able to regulate the expressive activities of Exxon Mobil Corp. than it is of the New York Times Company? Must all speakers be treated uniformly whether or not they are members of the press? And does the Press Clause (and not just the Speech Clause) play a role in this analysis? In this article, I push back on the claim that the Press Clause prohibits speaker-based classifications by the government. Rather than ban such distinctions, the Press Clause traditionally has worked in support of differential treatment for the press. History, court precedent and legislative practice, moreover, demonstrate how favoritism for press speakers has been condoned and often encouraged. This debate over the meaning of the Press Clause could have significant ramifications. A jurisprudential drift of press rights away from a protection of core press functions and toward a constraint on the ability of the government to recognize the differing roles of press speakers could significantly threaten the vital structural safeguards of the fourth estate.

Download the article from SSRN at the link.

February 15, 2017 | Permalink

Tuesday, February 14, 2017

Ewald and Oliver on UK Copyright and the Limits of Music Sampling

Julie Ewald and Paul G. Oliver, both of the University of Highlands and Islands, have published UK Copyright and the Limits of Music Sampling. Here is the abstract.

Music sampling is the act of taking a piece of an existing sound recording (the sample) and then using it in a new track. Sampling an original work without permission can infringe its copyright and therefore lead to lawsuits. There has still not been settled a single lawsuit regarding music sampling in the UK courts. It is therefore unclear to what extent music sampling can be used without infringing copyright. The overall aim of this paper is to establish the limits of music sampling and thereby determine whether music sampling could be used without infringing copyright laws. The literature review establishes the history and development of music sampling and determines the applicable laws. It also determines that there are two main exceptions to copyright; fair dealings and de minimis, which will be considered in the analysis. The methods used to analyse these two exceptions to copyright are the critical legal doctrine and the black letter analysis, which means that the analysis is based upon the statutes and case law. Due to the lack of UK case law, it is necessary to focus primarily upon case law from the US. Additionally, a survey was conducted to gather quantitative data regarding the use and perception of music sampling and its legality. In the analysis the two exceptions to copyright are considered. It is found that the fair dealings exception cannot be applied upon music sampling, while the de minimis exception can be applied, if the sample is not substantially similar to the original work. This meant that a sample could only be considered as “de minimis” in some very limited circumstances. Finally, it is showed how musicians believe that this current legal situation regarding music sampling can have a limiting effect upon their creativity. Overall, it is determined throughout this paper that the current copyright laws do not reflect the technological changes that has enabled musicians to unfold their creativity through “new” methods such as music sampling. It is therefore necessary that both the current law and their interpretation in courts are more relaxed in order not to damage the creative expression.

Download the article from SSRN at the link.

February 14, 2017 | Permalink

Pozen on Freedom of Information Beyond the Freedom of Information Act @ColumbiaLaw

David Pozen, Columbia Law School, is publishing Freedom of Information Beyond the Freedom of Information Act in the University of Pennsylvania Law Review (2017). Here is the abstract.

The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes to a culture of adversarialism and derision surrounding the domestic policy bureaucracy while insulating the far more secretive national security agencies, as well as corporations, from similar scrutiny. If this Article’s core claims are correct to any significant degree, then open government advocates in general, and progressives in particular, ought to rethink their relationship to this landmark law.

Download the article from SSRN at the link.

February 14, 2017 | Permalink

Monday, February 13, 2017

Temperman on Media & Incitement

Jeroen Temperman, Erasmus University Rotterdam, has published Media & Incitement in Comparative Perspectives on the Fundamental Freedom of Expression 593 (Andras Koltay ed., Budapest: Wolters Kluwer, 2016). Here is the abstract.

Analysis of relevant European Court of Human Rights cases in the area of media & incitement.

Download the essay from SSRN at the link.

February 13, 2017 | Permalink

Frosio on the Right to be Forgotten: Much Ado about Nothing @GCFrosio

Giancarlo F. Frosio, University of Strasbourg, Centre for International Intellectual Property Studies (CEIPI) and Stanford Law School (CIS), is publishing Right to Be Forgotten: Much Ado About Nothing, in volume 15 of the Colorado Technology Law Journal. Here is the abstract.

In the information society, the role of private sector entities in gathering information for and about users has long been a most critical issue. Therefore, intermediaries have become a main focus of privacy regulations, especially in jurisdictions with a strong tradition of privacy protection such as Europe. In a landmark case, the ECJ ruled that an internet search engine operator is responsible for the processing that it carries out of personal data which appear on web pages published by third parties. The recognition by the European Union of a so called “right to be forgotten” (RTBF) has ignited disgruntled reactions from civil society and legal scholars, especially in the United States. Meanwhile, proposals for the adoption of a similar right have appeared in several jurisdictions, including Brazil, Japan, Korea, and Russia. Supposedly, the right to be forgotten would endanger freedom of expression (FoE) and access to information. Apparently, factoids — defined by the Oxford Dictionary as “an item of unreliable information that is reported and repeated so often that it becomes accepted as fact” — dominated the recent debate surrounding the right to be forgotten. This paper will discuss and debunk these factoids, review data protection legislation in Europe, and explore the legal and policy implications of the newly emerging right to be forgotten. Finally, the idea that extra-territorial application of the RTBF might unleash a kraken that can break down the Internet will be contextualized within the present political scenario. The extra-territorial application of the RTBF follows in the footsteps of a global move towards data protectionism against the de facto market dominance of US Internet conglomerates. Global blocking governed by a nationality principle — as suggested by CNiL and other EU institutions — would put at rest these protectionist concerns.

Download the article from SSRN at the link.

February 13, 2017 | Permalink

TIman on The Body-Worn Camera as a Transitional Technology

Tjerk Timan, Tilburg University Institute for Law, Technology, and Society (TILT), has published The Body-Worn Camera As a Transitional Technology at 14 Surveillance & Society 145 (2016). Here is the abstract.

In 2009, body-worn cameras were introduced in the Netherlands as an experiment to reduce violence against public servants, including police officers. Following the allegedly positive results of body-worn cameras in reducing violence in the United Kingdom, these technologies were introduced with high expectations by several Dutch police forces. However, questions remain about the goals and purposes of body-worn camera adoption. Can a camera prevent or reduce violence against its carrier/wearer? Is it yet another tool to surveil citizens, packaged in a discourse of worker safety? Do the cameras alter police practices and, if so, how? Based on fieldwork conducted in 2010 and 2011 in the Netherlands, this contribution to the debate explores the goals and necessity of this equipment. Questioning the police body camera in this way touches upon a larger question within Surveillance Studies, which is how to look at new tools of surveillance and to what extent they alter surveillance theories, concepts, and practices. Focusing on the new and visible risks over-analyzing and over-emphasizing the tool-in-itself, thereby possibly missing the organizational structure in which the new tool will operate (see Bowker and Starr 1999). Moreover, the body-worn camera in current form is a transitional technology; it will probably be phased out and mutate into another wearable camera technology.

Download the article from SSRN at the link.

February 13, 2017 | Permalink

Wednesday, February 8, 2017

Zezulka on The Digital Footprint and Principles of Personality Protection in the European Union

Ondřej Zezulka, Charles University in Prague, Faculty of Law, has published The Digital Footprint and Principles of Personality Protection in the European Union as Charles University in Prague Faculty of Law Research Paper No. 2016/III/2. Here is the abstract.

The concept of so called "Digital Footprint" represents a phenomenon of modern digital era. Natural persons who use digital services create, deliberately or unknowingly, a kind of digital imprint which contains sensitive personal information. Personal data can be relatively easily tracked by digital services providers and subsequently processed for commercial purposes, usually for targeted advertising, or misused for illegal purposes. Therefore, personal data shall be regarded as a potential threat to individual’s privacy. It shall be borne in mind that awareness about digital safety within society is still low - social websites encourage users to share sensitive personal data with undisclosed range of recipients, benevolent settings of internet browsers allows to track cookies or mere visiting websites enables specialised programs to create a comprehensive behavioural profile consisting of one’s private life, customs, social status or consuming preferences. Current trend in digital security legislation seeks for a balances solution between the right to privacy and commercial interests of personal data processors. The European legislation on personal data protection and respective case law has begun to constitute an integral part of consumer protection law.

Download the article from SSRN at the link.

February 8, 2017 | Permalink

Tuesday, February 7, 2017

Blogger Retracts "Escort" Statements About Melania Trump, Settles Suit

Variety reports that Melania Trump has come to a settlement with Maryland blogger Webster Tarpley who alleged that she had worked as an escort. Mr. Tarpley acknowledged that his writing was defamatory, according to the Variety article, saying that "I had no legitimate factual basis to make these false statements about her.'

Ms. Trump had also sued the Daily Mail's parent company in a Maryland court over reports that similar reports derived from a Slovenian magazine that she worked as an escort but a judge dismissed that suit earlier this year. Ms. Trump refiled that suit in a New York state court earlier this week.  She has also sued the journalist who wrote the article in Suzy magazine.

More about the original Daily Mail lawsuit, and the reports emanating from the Slovenian magazine, Suzy, here, from a Washington Post article published in October 2016. WaPo notes that the Daily Mail was "skeptical of the escort claim."

February 7, 2017 | Permalink

Keller on Whether Copyright Can Protect Privacy @ONULaw

Deidre A. Keller, Ohio Northern University College of Law, is publishing Copyright to the Rescue: Should Copyright Protect Privacy? in volume 20 of the UCLA Journal of Law & Technology (Spring 2016). Here is the abstract.

In the summer of 2015 the news of the leak of data associated with Ashley Madison hit. Many may have missed the copyright angle to that news story – Ashley Madison sought to use the Digital Millennium Copyright Act’s takedown provisions to secure its customer’s data. This piece considers the normative question of whether copyright ought to protect privacy by first considering the extent to which the normative bases for protection of copyright and privacy are complementary or in conflict and the history of the relationship between copyright and privacy. The piece notes the recent use of copyright in various cases to protect against incursions upon privacy and considers the benefits and problems associated with those uses; specifically, I argue that whatever role copyright has to play in protecting privacy, treating any such privacy right as one with constitutional dimensions is out of line with both copyright’s constitutional basis and right to privacy theory and jurisprudence. Thirty years ago in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) the Supreme Court blurred the line between the tort of the right to privacy and the constitutionally protected right to privacy in the context of copyright. This piece argues that rather than continue down that convoluted road, we ought to return to the principles embodied by the common law right of first publication by statutorily adopting the moral right of first disclosure. Finally, the piece suggests that any federal privacy legislation aimed at protecting against invasions of privacy on the internet utilize, as a starting place, the DMCA’s remedial provisions.

Download the article from SSRN at the link.

February 7, 2017 | Permalink

Monday, February 6, 2017

Linos and Twist on The Supreme Court, the Media, and Public Opinion: Comparing Experimental and Observational Methods

Katerina Linos, University of California, Berkeley, School of Law, and Kimberly Twist, University of California, Berkeley, Department of Political Science, are publishing The Supreme Court, the Media, and Public Opinion: Comparing Experimental and Observational Methods in volume 45 of the Journal of Legal Studies (2016). Here is the abstract.

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

February 6, 2017 | Permalink

Crowdsourcing Reality and the "Bowling Green Massacre"

Jim Rutenberg discusses the immediate and overwhelming Twitter pushback against Kellyanne Conway's reference to the "Bowling Green Massacre," here, for the New York Times.

February 6, 2017 | Permalink

Dorf and Tarrow on Stings and Scams: "Fake News," the First Amendment, and the New Activist Journalism @dorfonlaw

Michael C. Dorf and Sidney Tarrow, both of Cornell Law School, have published Stings and Scams: ‘Fake News,’ the First Amendment, and the New Activist Journalism as Cornell Legal Studies Research Paper No. 17-2. Here is the abstract.

Constitutional law, technological innovations, and the rise of a cultural “right to know” have recently combined to yield “fake news,” as illustrated by an anti-abortion citizen-journalist sting operation that scammed Planned Parenthood. We find that the First Amendment, as construed by the Supreme Court, offers scant protection for activist journalists to go undercover to uncover wrongdoing, while providing substantial protection for the spread of falsehoods. By providing activists the means to reach sympathetic slices of the public, the emergence of social media has returned journalism to its roots in political activism, at the expense of purportedly objective and truthful investigative reporting. But the rise of “truthiness” — that is, falsehoods with the ring of truth, diffused through new forms of communication — threatens the integrity of the media. How to respond to these contradictions is a growing problem for advocates of free speech and liberal values more generally.

Download the article from SSRN at the link.

February 6, 2017 | Permalink

Friday, February 3, 2017

PEN America's Daily Alert on Rights and Expression

PEN America's column DARE: Daily Alert on Rights and Expression can keep you up to date on issues in these relevant areas around the world. Check out today's issue here.

February 3, 2017 | Permalink

Thursday, February 2, 2017

UN Special Rapporteur Says New UK Government Bill May Violate Internationally Guaranteed Rights of Freedom of Expression

The Guardian's Damien Gayle reports that a new bill under consideration by the UK government may violate international human rights law, according to David Kaye, UN special rapporteur on the promotion and protection of the right to freedom of opinion and expression. The bill provides for age verification for users of certain websites, including those that provide access to sexually explicit material, and for data sharing among government agencies.


February 2, 2017 | Permalink