Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, July 31, 2017

Free Speech Bites: A Podcast Devoted To the Concept of Freedom of Speech and Thought

Nigel Warburton, who hosts the podcast Philosophy Bites, has launched the podcast Free Speech Bites, devoted to investigating free speech issues.  Follow Free Speech Bites on Twitter at @FreeSpeechBites.  Follow Philosophy Bites on Twitter at @philosophybites. (no uniformity there or uniformity for the website names, but hey, things happen). More here.

July 31, 2017 | Permalink

Coyle on the SPEECH Act and the Enforcement of Foreign Libel Judgments in the United States

John F. Coyle, University of North Carolina School of Law, is publishing The SPEECH Act and the Enforcement of Foreign Libel Judgments in the United States in the Yearbook of Private International Law. Here is the abstract.

This essay for the Yearbook of Private International Law discusses the Securing the Protection of Our Enduring and Established Constitutional Heritage Act (SPEECH Act) enacted by the U.S. Congress in 2010. The Act sought to address the perceived problem of libel tourism - the decision by plaintiffs in defamation suits to sue in jurisdictions with minimal ties to the case but with plaintiff-friendly substantive law - and has generated considerable discussion and commentary in the years since it was enacted. The essay first provides an overview of the Act. It then reviews the U.S. cases that have interpreted and applied the Act. It concludes by surveying the academic commentary relating to the Act.

Download the essay from SSRN at the link.

July 31, 2017 | Permalink

Dinwoodie and Richardson on Publicity Rights and Personality Rights and the Media @ElgarPublishing

Graeme B. Dinwoodie, University of Oxford Faculty of Law, and Megan Richardson, Melbourne Law School, have published Publicity Right, Personality Right, or Just Confusion? in Research Handbook on Intellectual Property in Media and Entertainment (Richardson and Ricketson eds., Elgar Publishing, 2017). Here is the abstract.

There is little consensus internationally as to whether and how the law should respond when celebrities find themselves subjected to unwanted public discussions of their private lives in the media (increasingly on a global basis online), and when their personal attributes are referenced without their consent in certain kinds of advertising and trade. A number of commentators have characterized such intrusions on a celebrity’s personal dignity or autonomy as simply falling among the minor inconveniences of being a celebrity, insufficient to warrant legal protection given important social values such as freedom of speech and cultural pluralism. The lack of consensus is reflected in the uncertain shifting legal lines drawn around celebrity protection, especially in common law jurisdictions which, unlike many civil law jurisdictions, do not adhere to the idea of a full-scale personality right. In this chapter, we canvass the diverse devices that the common law courts have deployed to deal with the grant of celebrity rights. We note and support the messy multivalence we find recognised in common law approaches given the range of dynamic interests that are at play. Such heterogeneity of values might also be relevant to the curtailment of celebrity rights. Thus, we equally support a flexible approach to the limitations, defences and other points at which discretion may be exercised by judges to find a balance between the interests/rights that may be claimed for celebrities (human and otherwise) in controlling the uses of their personal attributes in advertising and trade, and the countervailing interests/rights that others may seek to maintain including in freedom of speech and cultural pluralism.

Download the essay from SSRN at the link.

July 31, 2017 | Permalink

Sunday, July 30, 2017

Norton on Government Lies and the Press Clause @ColoLaw

Helen L. Norton, University of Colorado School of Law, is publishing Government Lies and the Press Clause in volume 89 of the Colorado Law Review. Here is the abstract.

This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press. Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear. In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain government lies that inflict economic and reputational harm, that punish or silence individuals' speech, or that imprison or deny other protected liberties. In this paper I focus instead on the ways in which some of the government's press-related lies and misrepresentations can frustrate the two values most commonly identified as underlying the First Amendment's Press Clause: exposing (and thus checking) government misconduct, and informing public opinion about a wide range of matters. Part I identifies a number of these falsehoods and the ways in which they can frustrate the press’s effectiveness in performing its watchdog and educator functions. For example, the government's misappropriation of the press's identity (i.e., the government's lies that it is the press) and the government's obfuscation of its role as author of material it has produced for publication (i.e., the government's lies that it is not the press) undermine the press's independence and credibility. The public needs to see and understand the press and the government as distinct entities with very different roles if the press is to offer a meaningful check on the government; the government's lies about being (or not being) the press thus threaten to blur the line between the two in damaging ways. Relatedly, the government's lies to the press about its own behavior -- coupled with its lies about the press intended to discredit the press -- directly interfere with the press's ability to hold the government accountable to the public through accurate and credible reporting. Part II then considers potential legal, structural, political, and expressive responses to such governmental falsehoods and their harms. Possibilities include a more muscular Press Clause doctrine that would prohibit governmental lies and misrepresentations that interfere with Press Clause functions, as well as engaged counterspeech and oversight by other government actors, the press, and the public more generally.

Download the essay from SSRN at the link.

July 30, 2017 | Permalink

Thursday, July 27, 2017

The Associated Press Discusses Why Twitter Won't Close Down Trump's Account

Barbara Ortutay discusses why it's unlikely that the microblogging platform Twitter would close down Donald Trump's account, even though he frequently tweets offensive or questionable content. For one thing, she notes that his tweets draw a lot of attention. For another, although he makes statements that offend, whether they actually violate Twitter's terms of service (TOS) might be difficult to demonstrate. More here.

July 27, 2017 | Permalink

Wednesday, July 26, 2017

Denison, Wedeking, and Zilis on Negative Media Coverage of the Supreme Court @universityofky

ICYMI:

 

Alex Denison, Justin Wedeking, and Michael Zilis, all of the Department of Political Science, University of Kentucky, have published Negative Media Coverage of the Supreme Court: The Interactive Role of Opinion Language, Coalition Size, and Ideological Signals. Here is the abstract.

When does the media use negative language to cover the Supreme Court, and what are the political consequences of this portrayal? We offer a novel consideration of how judicial behavior influences coverage of the Court. Examining over 1,000 news articles from 29 diverse outlets covering rulings from the 2014 term, and using text-based measures of both the Court and media’s negative rhetoric, we find that the Court sends an important signal of conflict through use of negative language in its decisions, leading to an increase in negativity in subsequent news coverage. We also show that this effect is conditional upon both the degree of consensus among the justices and ideological signals the Court sends when it rules. Because our findings may have important implications regarding public opinion about the Court, we propose an experiment to test how the media’s use of negative rhetoric shapes policy approval, specific support, and legitimacy.
Download the article from SSRN at the link.

July 26, 2017 | Permalink

Turkish Journalists Go On Trial For Assisting Terrorism

From the BBC: Seventeen journalists are on trial in Turkey, accused of aiding terrorists. They were arrested last year in the wake of the attempted coup against Turkish president Recep Tayyip Erdogan. The seventeen work for opposition newspaper Cumhuriyet and say the government is prosecuting them simply for reporting or commenting on the news. More from the L. A. Times here,  Birgun Daily here  (includes statements from the defendant journalists; apologies for my poor transliteration of the newspaper's title), and the Telegraph here.

July 26, 2017 | Permalink

The Guardian On Technology and Fake News

The Guardian reports on ways to create fake news, pointing out that we often rely on visual and auditory cues to persuade us that what we see and hear is authentic. There are also ways to detect deceptive reports, some of which the article describes.  Link here.

July 26, 2017 | Permalink

Wall on The Theft of Ideas as a Cybercrime

David S. Wall, University of Leeds, Centre for Criminal Justice Studies, has published The Theft of Ideas as a Cybercrime: Downloading and Changes in the Business Model of the Creative Arts in The Handbook of Technology, Crime & Justice 161-177 (M. McGuire and T. Holt, eds., London: Routledge, 2017).

This paper focuses on copyright and critically explores some of the arguments that are used to justify intellectual property law in this digital and networked age and some of the tactics used to protect them. More specifically, this paper explores the theft of creative ideas as a cybercrime and focuses upon the contradictory intellectual property issues raised by the digital and networked technologies of downloading via file sharing. Technologies, which, like each previous new form of communications technology has ‘disrupted’ predominant business models and challenged the assumptions behind them. In the case of the creative arts, the ‘intellectual land grab’ for control over the ideas domain remains as contentious as ever. In this case, digital forms of music, film and, for that matter many other expressions of the creative arts. On the one hand, there has been as there still is, a distinct move to restrict and disincentivise downloading via file sharing by criminalizing what was otherwise a civil space - arguably making it even more attractive as a form of deviance. On the other hand technologies are being developed to automatically censor IP content in live streams, reaffirming downloading via file sharing as a form of deviance. Furthermore, there is the simultaneous irony that technologised and legally unstable income stream collection practices, such as ‘speculative invoicing’ - the sending of invoices to alleged copyright infringers demanding payment else face further legal action - are corrupting the very process that they seek to protect. All, against the background of the curious paradox of circulation and control which appears to demand that successful management of IP has to achieve a critical balance between restricting it enough to prevent it from becoming too diluted and losing its public appeal and value, and letting it roam free enough for consumers to buy into it and creators incorporate the themes into the next generation of popular culture - itself a contradiction to existing intellectual property ‘central origin myths’.

Download the essay from SSRN at the link.

July 26, 2017 | Permalink

Man Convicted, Jailed For Acid Attack On Reporter

William Burns, found guilty in June of attacking journalist Russell Findlay, has been sentenced to 15 years in prison. Before sentencing him, the presiding judge described him as "clearly a dangerous man."  He also noted that "The freedom of the press is an essential tool in the armoury of any democracy and attacks of this nature will not be tolerated."

Mr. Burns threw acid in Mr. Findlay's face in the December 2015 attack; Mr. Findlay caught and detained him for police with the help of some neighbors.  At the time, Mr. Findlay was an editor for the Scottish Sun. According to a specialist, Mr. Findlay could have lost his eyesight because of the attack; quick action and medical attention helped preserve it.

Mr. Findlay continues to work as a journalist and to write non-fiction books. His publications include Caught in the Crossfire (2012) and The Iceman: The Rise and Fall of a Crime Lord (2008) (with Jim Wilson).

 

More here from Glasgow Live.

July 26, 2017 | Permalink

Luscombe, Walby, and Lippert on Comparing Freedom of Information Law and Policy in Canada and the US @alexjluscombe @uwinnipeg @UWindsor

Alex Luscombe, University of Toronto, Kevin Walby, University of Winnipeg, and Randy Lippert, University of Windsor, have published Brokering Access Beyond the Border and in the Wild: Comparing Freedom of Information Law and Policy in Canada and the United States at 39 Law & Policy 259 (2017). Here is the abstract.

Contributing to literature on jurisdictional variation in freedom of information (FOI) law and policy, we draw from accounts of experiences of FOI requests submitted to police agencies in nine Canadian provinces and ten US states. We conceptualize these experiences using notions of “brokering access,” “law in the wild,” and “feral law.” Our findings demonstrate key differences in how public police agencies store, prepare, and disclose information at municipal and provincial/state levels in Canada and the US, meaning that FOI‐related feral lawyering in Canada and the United States differs and fluctuates because of the variation in the mode of contact with FOI coordinators, fee estimate practices, and procedures for and responsiveness to appeals. In conclusion, we discuss the implications of our findings for methodological and sociolegal literature about FOI requests and for provincial/state FOI policies in both countries.

The full text is not available from SSRN.

July 26, 2017 | Permalink

Monday, July 24, 2017

Norton on Government Speech and the War on Terror @ColoLaw

Helen L. Norton, University of Colorado School of Law, is publishing Government Speech and the War on Terror in volume 86 of the Fordham Law Review (2017). Here is the abstract.

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence. In this essay, I examine the U.S. government's role as speaker (rather than as regulator of speech) in its war on terror, drawing from historical and contemporary examples to illuminate the great power of government’s wartime expression. As we shall see, the government’s expressive choices in wartime can be enormously valuable. On the other hand, the government has also engaged in wartime fearmongering and lies, with at times devastating effects to its targets specifically and to the American public collectively. Many of the challenges involving the government's speech in today’s war on terror are familiar (often painfully so), while some seem different in degree and perhaps in kind. Although courts and commentators have discussed at some length the First Amendment issues raised by the government’s restriction of others' speech as part of its war on terror, relatively little attention has yet been devoted to the implications of the government's own expression in this setting. Except for the Court’s interpretation of the Establishment Clause to limit government’s religious speech in certain contexts, for example, the Court’s government speech doctrine remains incomplete in that it has yet to address the ways in which the government’s own speech might affirmatively threaten other constitutional values. Part I of this essay considers the government's fearmongering speech in wartime -- i.e., its deliberate expressive effort to instill or exacerbate public fear of certain individuals or communities through stereotyping and scapegoating. Part II considers the government's war-related lies -- i.e., its deliberately or recklessly false assertions of fact about its wartime conduct made with the intent that the listener understand them to be true. Part III outlines a range of constitutional, statutory, structural, and political responses to the government’s wartime speech that threatens key constitutional values.

Download the article from SSRN at the link.

July 24, 2017 | Permalink

Sunstein and Randall on Political Control Over Public Communications By Government Scientists @CassSunstein @lirarandall ‏

Cass R. Sunstein, Harvard Law School, and Lisa Randall, Harvard University, Department of Physics, have published Political Control Over Public Communications by Government Scientists. Here is the abstract.

In recent years, there has been a great deal of controversy over political control of communications by government scientists. Legitimate interests can be found on both sides of the equation. This essay argues for adoption and implementation of a framework that accommodates those interests—a framework that allows advance notice to political officials, including the White House, without hindering the free flow of scientific information.

Download the article from SSRN at the link.

July 24, 2017 | Permalink

Clement and Obar on Keeping Internet Users in the Know Or in the Dark @AndrewClement @CDNJobar

A. Clement, University of Toronto, Faculty of Information, and J. A. Obar, York University and Michigan State University, have published Keeping Internet Users in the Know or in the Dark: An Analysis of the Data Privacy Transparency of Canadian Internet Carriers at 6 Journal of Information Policy 294 (2016). Here is the abstract.

In the wake of Snowden’s revelations about National Security Agency (NSA) surveillance, demands that Internet carriers be more forthcoming about their handling of personal information have intensified. Responding to this concern, this report evaluates the data privacy transparency of forty-three Internet carriers serving the Canadian public. Carriers are awarded up to ten stars based on the public availability of information satisfying ten transparency criteria. Carriers earn few stars overall, just 92.5 out of 430, an average of two of ten possible stars. A variety of policy recommendations are provided to encourage and guide further data privacy transparency efforts in Canada as well as around the world.

Download the article from SSRN at the link.

July 24, 2017 | Permalink

Wednesday, July 12, 2017

Registration Now Open for the Central States Law Schools Association 2017 Scholarship Conference

From the mailbox:



 

Registration is Open for the CSLSA 2017 Conference

 

Registration is now open for the Central States Law Schools Association 2017 Scholarship Conference, which will be held on Friday, October 6 and Saturday, October 7 at Southern Illinois University School of Law in Carbondale, Illinois. We invite law faculty from across the country to submit proposals to present papers or works in progress.

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Please click here to register. The deadline for registration is September 2, 2017.  

Hotel rooms are now available for pre-booking.  The conference hotel is the Holiday Inn Conference Center in Carbondale.  To reserve a room, call 618-549-2600 and ask for the SIU School of Law rate ($109/night) or book online and use block code SOL.  SIU School of Law will provide shuttle service to and from the Holiday Inn & Conference Center for conference events.  Other hotel options (without shuttle service) are listed on our website.  Please note that conference participants are responsible for all of their own travel expenses including hotel accommodations.

For more information about CSLSA and the 2017 Annual Conference please subscribe to our blog.





July 12, 2017 | Permalink

Tuesday, July 11, 2017

Gajda on The Present of Newsworthiness @TulaneLaw

Amy Gajda, Tulane University Law School, has published The Present of Newsworthiness at 50 New England Law Review 145 (2016). Here is the abstract.

In early February 2016, less than a week before this Book Symposium, the Utah Supreme Court decided that the photographic results of a woman’s plastic surgery were not necessarily newsworthy. The decision may seem inconsequential at first. The plaintiff had an abdominoplasty and breast augmentation and agreed that photos be taken “for medical, scientific or educational purposes.” Fox News later aired partially redacted photographs of her nude body and post-operative state in a news story about the benefits and risks of plastic surgery. The plaintiff settled with Fox, but filed a privacy-based lawsuit against her plastic surgeon. The Utah Supreme Court heard the case after a trial court dismissal and decided That the plaintiff’s privacy tort claims should continue. As regarding publication of private facts, the tort most relevant to this Symposium Paper, the court decided for the first time that such claims should include a newsworthiness element and defined the element in line with the Restatement (Second) of Torts. News, the court wrote, “is a concept that has essentially been defined by traditional publishers and broadcasters, ‘in accordance with the mores of the community.’” Therefore, in Utah, if a truthful news item is newsworthy, but privacy-invading, the newsworthiness of the information can trump the plaintiff’s privacy interests.

Download the article from SSRN at the link.

July 11, 2017 | Permalink

UK Politics, Cartoons, and Stereotypes

The Irish Times's Seamas O'Reilly discusses some racist imagery involving the Irish that has popped up in cartooning in UK media recently. He explains its history and meaning and discusses its links to current UK politics. More here.

July 11, 2017 | Permalink

Monday, July 10, 2017

Putin, Trump, and the "Journalists" Joke

Business Insider notes the little "inside joke" that Presidents Putin and Trump shared about "annoying journalists" during their private meeting at the G20 summit last week. More here.

Other media outlets mentioned it also, including Mother Jones andThe Independent.

July 10, 2017 | Permalink

ABA Forum on Communications Law Presents Its Tenth Annual First Amendment and Media Law Diversity Moot Court Competition @ABAesq

From the mailbox:

As in previous years, the ABA Forum on Communications Law is presenting its First Amendment and Media Law Diversity Moot Court Competition. The deadline to apply is September 11, 2017. Here's the link to the application form.  There is no fee to apply.  Note that the ABA pays the travel and accommodations to four teams to participate in the semi-finals and finals, at the Forum’s Annual Conference at the  Silverado Resort and Spa, Napa Valley, California, from February 28, - March 3, 2018.   The ABA will also award $5,000 total in cash prizes. Such a wonderful opportunity and a great experience for law students, so please encourage yours to get involved!

 

The First Amendment and Media Law Diversity Moot Court Competition is administered by the American Bar Association Forum on Communications Law. The Competition Committee, which is comprised of media lawyers, in-house counsel at national media companies, and tenured and visiting law school faculty, will oversee the administration of the Competition.

 

The more than 2,500 members of the American Bar Association Forum on Communications Law regularly represent media and telecommunications companies in litigation and regulatory and transactional matters, among other things. The principal objectives of the Forum are: (1) to encourage discussion of issues relating to the legal counseling and representation of the print media, the telecommunications industry, and the electronic media; (2) to support and promote research, forums and publications focusing on communications and media law; and (3) to keep abreast of developments in communications and media law. In addition, the Forum understands and appreciates the value of a diverse legal profession. It is committed to diversifying its membership and to participating in activities and programs that expand opportunities for minority students and attorneys to become active members of the legal profession and the media bar in particular. The Competition is designed in part to facilitate these objectives.

For any questions about the competition, or to reach the Competition Committee, please contact Competition Co-chair, James C. McFall at jmcfall@jw.com; Robin Luce-Herrmann at luce-herrmann@butzel.com; and Rachel E. Fugate at rfugate@shullmanfugate.com

July 10, 2017 | Permalink

Thursday, July 6, 2017

CNN Staff Reporting Increase in Threats, Attempts At Intimidation

From the Daily Beast: CNN staffers are reporting an increase in threatening phone calls and other kinds of intimidation aimed both at them and their families, which they see as linked to the administration's attacks on the media generally and on CNN in particular. More here.

There is also some concern at the network over the pending ATT merger with Time-Warner, parent company of CNN. The Department of Justice must sign off on the merger, and some speculate that the current administration might try to derail the merger for political reasons. More here from Ars Technica, here from the Washington Examiner, here from Vanity Fair. Coverage of the battle between CNN and the President here, from the New York Times.

July 6, 2017 | Permalink