Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 29, 2017

Rabban on Challenging the "Worthy" Tradition: Revisionist Interpretations of Free Speech in American History

David M. Rabban, University of Texas School of Law, is publishing Challenging the 'Worthy' Tradition: Revisionist Interpretations of Free Speech in American History in volume 45 of Reviews in American History (June 2017). Here is the abstract.

This is a joint book review of Sam Lebovic, Free Speech and Unfree News: The Paradox of Press Freedom in America, and Laura Weinrib, The Taming of Free Speech: America's Civil Liberties Compromise.

Download the review from SSRN at the link.

June 29, 2017 | Permalink

Wednesday, June 28, 2017

Sarah Palin Sues New York Times For Defamation Over Editorial Linking Her To Loughner Shooting of Gabby Giffords In 2011

Sarah Palin, former Alaskan Governor and 2012 Vice-Presidential Republican candidate, is suing the New York Times for defamation, alleging that a NYT editorial published June 14th falsely linked her to the 2011 shooting of former Representative Gabby Giffords (D-AZ). In particular, Ms. Palin objects to wording that indicates that a PAC associated with her "circulated a map of targeted electoral districts that put Ms. Giffords and 19 other Democrats under stylized cross hairs."

Although the NYT corrected the statements and apologized, Ms. Palin is pursuing the matter, saying that the Times apology is not enough because the paper has accused her of inciting murder. 

June 14th is the same day that Rep. Steve Scalise (R-LA) and others were injured in a shooting at a baseball field in Virginia. Rep. Scalise is still undergoing treatment at Medstar, in Washington, DC.

In order for Ms. Palin to prevail in her action against the Times, because she is a public figure, she must show that the Times knew or should have known that the statements it made were false when it made them.  (First problem: the NYT can argue it didn't make any statements of fact).

An article published in the Washington Post analyzes the issue.   Mark Grabowski at the Washington Examiner also takes a look at the likelihood that Ms. Palin could win her suit--his conclusion is that success is unlikely.


More here from NPR's the Two-Way.

June 28, 2017 | Permalink

Tuesday, June 27, 2017

Gora on The Roberts Court and the First Amendment @brooklynlaw

Joel M. Gora, Brooklyn Law School, has published Free Speech Matters: The Roberts Court and the First Amendment at 25 Brooklyn Journal of Law and Policy 63 (2016). Here is the abstract.

This article contends that the Roberts Court, in the period from 2006 to 2016, arguably became the most speech-protective Supreme Court in memory. In a series of wide-ranging First Amendment decisions, the Court sounded and strengthened classic free speech themes and principles. Taken together, the Roberts Court’s decisions have left free speech rights much stronger than they were found. Those themes and principles include a strong libertarian distrust of government regulation of speech and presumption in favor of letting people control speech, a consistent refusal to fashion new “non-speech” categories, a reluctance to “balance” free speech away against governmental interests, and, most notably in the campaign finance cases, a reaffirmation of the “central meaning” of the First Amendment, namely, to protect the processes of freedom of speech, press, and association that make our democracy possible. The Roberts Court’s legacy has emphasized individual and group choice over what to say, how to say it, and when and where to say it, expressing deep skepticism for permitting government to make those choices and censor the ideas and information the public may express receive. To be sure, some First Amendment claims have been rejected by the Roberts Court. And critics on and off the Court have faulted the Court for either selectively protecting free speech, at the expense of democratic or egalitarian values, or over protecting free speech and complicating the government’s task of regulating First Amendment rights. But, when one factors in the quality and nature of the Court’s pro-free speech decisions and doctrines, the Court’s record holds up extremely well against any predecessor Court. Finally, in a time when, in the trenches of everyday life, censorship and suppression seem more the rule than the exception, both at home and abroad, the promise of a continued First Amendment friendly Supreme Court is a welcome one indeed.

Download the article from SSRN at the link.

June 27, 2017 | Permalink

Monday, June 26, 2017

Stone on Canadian Constitutional Law of Freedom of Expression @stone_adrienne

Adrienne Stone, Melbourne Law School, is publishing Canadian Constitutional Law of Freedom of Expression in Canada in the World: Comparative Perspective on the Canadian Constitution (R. Albert and D. Cameron eds., Cambridge University Press, --). Here is the abstract.

The Canadian law of freedom of expression represents a distinctive and important contribution to global constitutionalism. In this chapter, I will reflect upon it with three aims. First, I will examine Canadian free speech law to identify the fundamental commitments on which it depends: equality, multiculturalism and a conception of the state as a positive agent in the protection of rights, the last of which I think is sometimes underemphasised in comparative debate. Second, I will argue that these distinctive substantive commitments — most especially the conception of the state — are also evident in the methodology of Canadian constitutional law of freedom of expression.

Download the essay from SSRN at the link.

June 26, 2017 | Permalink

Friday, June 23, 2017

McCullagh on Information Access Rights in FOIA and FOISA: Fit For Purpose?

Karen McCullagh, UEA Law School, has published Information Access Rights in FOIA and FOISA – Fit for Purpose? at 21 Edinburgh Law Review 55 (2017). Here is the abstract.

The Freedom of Information Act 2000 (FOIA) enacted by the Westminster Parliament applies to public authorities in England, Wales and Northern Ireland and to UK public authorities that operate in Scotland e.g. the BBC, whilst the Freedom of Information (Scotland) Act 2002 (FOISA), promulgated by the Scottish Parliament, applies to Scottish public authorities. Both Acts commenced on 1st January 2005, and have been hailed as success stories – helping the public and the press to obtain information on issues such as: problems with a nuclear reactor, inadequate health services, school closures, a lack of suitable quality housing for people with disabilities and so forth. Nevertheless, FOIA has been described as ‘a brilliant piece of trompe l’oeil, a sheep in wolf’s clothing,’ appearing to offer a legally enforceable right of access to governmental information subject only to specified and justifiable exemptions when, in fact, it offers weak information access rights. By contrast, it has been asserted that ‘Scotland has most robust Freedom of Information regime in the UK.’ A two-strand approach is used to test the veracity of these claims and determine whether both jurisdictions have freedom of information laws that are fit for purpose as the Acts enter their second decade. Firstly, an assessment of the degree of compliance of both Acts with principles that have been endorsed by the United Nations as forming the normative foundations of freedom of information laws is undertaken. Secondly, the Acts are compared to ascertain whether FOISA does in fact offer stronger information access rights than FOIA, and if so, what lessons the UK could draw upon to strengthen FOIA. The analysis will demonstrate that the Acts are creatures of their respective Parliaments and that distinct ‘political cultures’ have influenced their evolution over the past ten years leading to significant divergences between the two. It concludes that, at present, FOISA offers stronger information access rights whereas FOIA offers weaker rights, but both Acts should be amended to ensure full compliance with the UN endorsed principles if both jurisdictions are to have information rights that are fit for purpose as the Acts enter their second decade.
Download the article from SSRN at the link.

June 23, 2017 | Permalink

Bloch-Wehba on Exposing Secret Searches: The First Amendment Right of Access To Electronic Surveillance Orders @HBWHBWHBW

Hannah Bloch-Wehba, Yale University; Yale Information Society Project, is publishing Exposing Secret Searches: The First Amendment Right of Access to Electronic Surveillance Orders in the Washington Law Review. Here is the abstract.

Although, as a rule, court proceedings and judicial records are presumptively open to the public, electronic surveillance documents are exceptions. For obvious reasons, surveillance applications are considered ex parte. Court orders frequently remain sealed indefinitely, even when there is no basis for continued secrecy. Indeed, secrecy—in the form of gag orders, local judicial rules, and even clerical filing and docketing practices—is built into the laws that regulate electronic surveillance. The Fourth Amendment, which traditionally regulates police investigations, appears to require little in the way of transparency and public accountability. This Article argues that this widespread secrecy violates the First Amendment right of access to court proceedings and documents. The history of search and seizure shows that, far from requiring secrecy, searches and seizures were historically executed in public, with neighbors watching and even participating. Secrecy surrounding searches and seizures is a relatively new development, linked to the emergence of communications technology and laws governing the acquisition of customer records from third-party service providers. Transparency would play an especially positive role in this context because electronic surveillance is otherwise virtually insulated from public scrutiny: basic information about the scope of the government’s authority to conduct surveillance and data regarding the frequency with which it does so is largely unavailable to the public. Sealing also obscures the government’s interpretations of its own legal authority, as well as important information about new law enforcement technologies. These twin arguments—historical and logical—establish a basis for courts to recognize that a First Amendment right of access attaches to surveillance materials after an investigation has concluded. While the government may have a compelling need for secrecy of surveillance materials in ongoing investigations, there is no government interest sufficiently compelling to warrant the sealing of tens of thousands of judicial documents long after an investigation has concluded.

Download the article from SSRN at the link.

June 23, 2017 | Permalink

Thursday, June 22, 2017

UK Media Limited In What It Can Report Concerning Finsbury Park Attack @ConversationUK

From the Conversation UK, a discussion of the effect of the Contempt of Court Act on reporting on the Finsbury Park attack. The Conversation notes that because there has been an arrest, the Act works to preserve the rights of the accused against prejudicial publicity. More here from the Conversation.

More discussion of the issue here from Legal Cheek.

Read the text of the Contempt of Court Act here.  Read more discussion from the Crown Prosecution Service here.

June 22, 2017 | Permalink

Tuesday, June 20, 2017

Fundraising For the Society of Professional Journalists, San Diego Chapter

A couple of folks are independently raising money for the San Diego Chapter of the Society of Professional Journalists. Here's a link to their IndieGoGo page. Donate money and get some "cigarette cards" illustrated with images of  famous contemporary journalists (which ones and how many obviously depends on the amount you donate). More, along with an explanation of what cigarette cards are, here at the link.

June 20, 2017 | Permalink

Thursday, June 15, 2017

The News Media and the Use of Drones: Ethical Use Will Build Trust @UWJournEthics

From the Center for Journalism Ethics, a white paper from Kathleen Bartzen Culver and Megan Duncan, Drones in the Newsroom: Insights Into Audience Opinions and Expectations. 

Briefly, the authors conclude that the more audiences trust the media, the more they believe that the media will use drones responsibly in news gathering. They say in part:  "Recent research suggests a relationship between trust in news media and evaluation of news media ethical performance. Here, we find that those who perceive the news media as more ethical support the use of drones in journalism and consider it an important tool for journalist more than those who perceive low levels of ethical behavior. When we look at perceived ethical behavior by story type, we find that the perception of ethics doesn’t matter for “soft” news stories like traffic, weather, outdoor features, or stories on the environment. The level of perceived ethical behavior does matter in “hard” news such as crime, investigative or protest. Again, we find the difference between those who perceive high and low levels of ethical behavior is especially extended for stories about celebrities or impropriety."


June 15, 2017 | Permalink

Sony's Clean Version Program Rolls Out But Not Without Criticism

The Director's Guild is looking into Sony's Clean Version intiative, but some directors may not be on board. The company intends this program to present edited (broadcast or airline) versions of films to consumers who would prefer their movies with no lewdness and maybe less sex or violence. But objections are already surfacing. Actor/producer Seth Rogen made his disappointment known immediately. 

The Director's Guild and Judd Apatow were more direct, the DGA saying "Directors have the right to edit their feature films" for any kind of release or audience..

Sony's program is a response to the Clean Flicks and VidAngel initiatives, which respond to the wishes of some audience segments that want to watch popular movies, but without what they consider to be objectionable scenes or themes.  

Sony has now said it won't release edited versions of the films if their directors object.

More from The Hollywood Reporter. 

June 15, 2017 | Permalink

Wednesday, June 14, 2017

ECJ Ruling On Copyright: Intermediaries Can Be Held Liable For Third Party Infringement

The European Court of Justice has ruled that those who facilitate sharing of copyrighted material may be liable for infringement. See the decision here, Stichting Verein v. S4ALL Internet BV.

The Court pointed out that parts of Directive 2001/29 protects the rights of artists and creators, and Article 8 provides a remedy, in the form of an injunction: "Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right." 

Analysis from Bloomberg News, Dutch News,  ArsTechnica.


June 14, 2017 | Permalink

Monday, June 12, 2017

Penney on Internet Suveillance, Regulation, and Chilling Effects Online: A Comparative Case Study @jon_penney

Jon Penney, University of Oxford, Oxford Internet Institute, University of Toronto Citizen Lab, Harvard University Berkman Klein Center for internet & Society, Dalhousie University Schulich School of Law, is publishing Internet Surveillance, Regulation, and Chilling Effects Online: A Comparative Case Study in the Internet Policy Review (2017). Here is the abstract.

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online—the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work helps fill this void with a first-of-its-kind online survey that examines multiple dimensions of chilling effects online by comparing and analyzing responses to hypothetical scenarios involving different kinds of regulatory actions—including an anti-cyberbullying law, public/private sector surveillance, and an online regulatory scheme, based on the Digital Millennium Copyright Act (DMCA), enforced through personally received legal threats/notices. The results suggest not only the existence and significance of regulatory chilling effects online across these different scenarios but also evidence a differential impact—with personally received legal notices and government surveillance online consistently having the greatest chilling effect on people’s activities online—and certain online activities like speech, search, and personal sharing also impacted differently. The results also offer, for the first time, insights based on demographics and other similar factors about how certain people and groups may be more affected than others, including findings that younger people and women are more likely to be chilled; younger people and women are less likely to take steps to resist regulatory actions and defend themselves; and anti-cyberbullying laws may have a salutary impact on women’s willingness to share content online suggesting, contrary to critics, that such laws may lead to more speech and sharing, than less. The findings also offer evidence of secondary chilling effects—where users’ online activities are chilled even when not they, but others in their social networks receive legal processes.

Download the article from SSRN at the link.

June 12, 2017 | Permalink

Wednesday, June 7, 2017

Treiger-Bar-Am on Copyright and Positive Freedom: Kantian and Jewish Thought on Authorial Rights and Duties

Kim Treiger-Bar-Am, Bar Ilan University, has published Copyright and Positive Freedom: Kantian and Jewish Thought on Authorial Rights and Duties at 63 J. Copyright Soc'y U.S.A. 551 (Fall 2016).

What can Kantian philosophy and Jewish thought contribute to our understanding of authorial rights and duties? Kant's support for protection of the autonomy of expression of authors and Judaism's for the creative freedom of authors – so-called primary and subsequent authors who make transformative use of prior works. The freedom put forth in those theoretical systems is a positive freedom. Positive freedom is, in both Kantian and Jewish thought, the capacity for morality, from which ensue one's right of respect, and also the duty to respect others. Positive freedom for authors underscores authorial rights as well as authorial duties of respect. When copyright is understood as positive freedom it is both deontological and with a telos of respect, thus bridging elements in the discord presumed between the instrumental Anglo-American copyright model and the deontological Continental droit d'auteur system.

Download the article from SSRN at the link.

June 7, 2017 | Permalink

Gajda on Privacy, Press, and a Right To Be Forgotten in the United States @TulaneLaw

Amy Gajda, Tulane University Law School, has published Privacy, Press, and a Right to Be Forgotten in the United States. Here is the abstract.

When the European Court of Justice in effect accepted a Right to Be Forgotten in 2014, many suggested that a similar right would be neither welcomed nor constitutional in the United States given the Right’s impact on First Amendment-related freedoms. Even so, a number of state and federal courts have recently used language that suggests at least in part the appropriateness of such a Right. These court decisions protect an individual’s personal history in a press-relevant way: they balance individual privacy rights against the public value of older truthful information and decide at times that privacy should win out. In other words, they support the idea that an individual whose past has been revealed can sue for invasion of privacy. This paper explores Right to Be Forgotten-like language and sensibilities in United States jurisprudence and suggests that such a Right has a foundation in historical case law and present-day statutes. It argues that the legal conception of privacy in one’s past has some limited practical and important purposes, but also that any Right to Be Forgotten must be cabined effectively by presuming newsworthiness — a word defined similarly in law and journalism — in order to protect significant and competing First Amendment press interests.

The full text is not available from SSRN.

June 7, 2017 | Permalink

Klinefelter on Reader Privacy in Digital Library Collaborations @UNCLibrary @unc_law

Anne Klinefelter, University of North Carolina, Chapel Hill, School of Law, has published Reader Privacy in Digital Library Collaborations: Signs of Commitment, Opportunities for Improvement at 13 I/S: J. L. Pol'y for Info. Soc'y 199 (2016). Here is the abstract.

Libraries collaborate to digitize collections large and small in order to provide information with fewer geographical, temporal, or socio-economic barriers. These collaborations promise economy of scale and breadth of impact, both for access to content and for preservation of decaying print source material. Some suggest this increased access to information through the digital environment comes at the expense of reader privacy, a value that United States librarians have advanced for nearly eighty years. Multiplying risks to digital reader privacy are said to weaken librarians’ commitment to privacy of library use and to overwhelm libraries’ ability to ensure confidential access to information. This article reviews some recent national and international organization statements on library privacy and finds continuing commitment to library privacy but varied approaches to balancing privacy with other goals and challenges in the digital environment. The article also evaluates privacy protections arising from libraries’ digital collaboration work with Google Books and the related HathiTrust project, and finds a number of vulnerabilities to confidential library use of these resources. These reviews confirm that reader privacy is increasingly at risk even as librarians’ confirm their commitment to protecting reader privacy through organizational statements. The article concludes that libraries can use their collaborative traditions to develop better approaches to protecting privacy as they develop digital collections. Even if libraries have limited success negotiating for or creating digital spaces for perfect digital reader privacy, much can be gained by making privacy an important feature of digital library design. Incremental but meaningful improvements can come from user authentication systems with privacy features, wider adoption of encryption, and innovations in website analytics tools. Reader privacy pressures and compromises are not new to libraries, and incremental solutions in the digital environment are worthy efforts that honor the tradition of libraries’ commitment to reader privacy.

Download the article from SSRN at the link.

June 7, 2017 | Permalink

Gajda on Privacy Before "the Right To Privacy" @TulaneLaw

Amy Gajda, Tulane Law School, has published Privacy Before 'the Right to Privacy': Truthful Libel and the Earliest Underpinnings of Privacy in the United States. Here is the abstract.

The Right to Privacy, written in 1890, is perhaps the most famous law review article ever published in the United States. In twenty-seven pages, Samuel Warren and William Brandeis argued that the time was ripe for new legal protection in the form of a privacy tort, one that would protect people from the prying ways of increasingly intrusive, technologically savvy journalists. Today, the article is often credited with establishing modern privacy law out of nothing. Yet, curiously unmentioned by Warren and Brandeis, the new tort that they advocated already had solid legal precedent in the American experience: In jurisprudence prior to 1890, truthful libel or other similar privacy-based causes of action provided a vehicle for punishing unwanted press disclosures of private information. That history would have provided direct precedent for Warren and Brandeis’s calls for privacy and for broader legal intervention against the press, but it also would have highlighted such a law’s potential hazards. In considering present-day calls to expand privacy protection, we would do well to understand the full pedigree of our present law and guard against overzealous restriction of the press. Early cases and their remarkable restrictions help prove why.

The full text is not available for download from SSRN.

June 7, 2017 | Permalink

Tuesday, June 6, 2017

Zaharoff on Defamation of the President

Zachary Zaharoff, Independent, has published Defaming the Prince. Here is the abstract.

This Article argues that press outlets should be completely immune from defamation suits initiated by a U.S. President. The Article presents the current defamation standard for public officials and explores the history of tense President-press relations. It then argues that defamation lawsuits are a dangerous tool in the hands of a sitting President and that the potential for abuse of these lawsuits makes them inconsistent with the First Amendment. In support of this claim, the author offers several doctrinal and policy rationales for eliminating the New York Times Co. v. Sullivan standard with respect to a sitting President in favor of a zero-liability rule. In a political climate dominated by charges of “Fake News” and with the election of a notoriously litigious President, now is an opportune time to explore the implications of allowing a sitting President to bring a cause of action for defamation.

Download the article from SSRN at the link.

June 6, 2017 | Permalink

Monday, June 5, 2017

BPI's Defamation Trial Against ABC Begins

The Hollywood Reporter's Eriq Gardner on the first day of the "pink slime" trial (Beef Products Inc. v. ABC), in which the meat processor alleges that ABC's reports on its product defamed it and cost it three-quarters of its business. ABC's lawyer says ABC's reporting will be "fully vindicated."  BPI is seeking nearly $2 billion in damages. More here from the New York Times.


More here from Fortune. 

June 5, 2017 | Permalink