Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, January 26, 2018

Norton on Remedies and the Government's Constitutionally Harmful Speech

Helen L. Norton, University of Colorado School of Law, is publishing Remedies and the Government's Constitutionally Harmful Speech in ConLawNOW (2018). Here is the abstract.

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In this contribution to a symposium on remedies, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow — along with its willingness to use these powers for disturbing purposes and with troubling consequences. More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can and should be available to redress the government’s constitutionally harmful speech. Indeed, courts have long considered injunctive relief in cases challenging what we only now describe as “government speech.” Examples include court orders that require the government to stop, take down, or excise its threatening, inaccurate, hateful, or otherwise harmful speech that violates specific constitutional protections. Sometimes, moreover, the government’s speech inflicts damage of the sort that the law has traditionally treated as relatively quantifiable; examples include the government’s lies that lead to wrongful arrest or imprisonment or the government’s threatening speech that leads to a target’s job loss. Even when the constitutional injuries inflicted by government speech can be difficult to quantify in monetary terms, nominal damages can serve both expressive and deterrent functions. Finally, declaratory relief is generally available to “call out” — i.e., name and shame — governmental speech that violates specific constitutional protections even absent a viable claim for damages or injunctive relief. My ambition for this short essay is simply to show that, in some situations, government speech that harms specific constitutional interests is amenable to constitutional remedies. In so doing, I hope to provide a platform for future thinking and problem-solving.

Download the essay from SSRN at the link.

January 26, 2018 | Permalink

Thursday, January 25, 2018

IPSO Rulings Face Judicial Appeal

The UK's Independent Press Standards Organisation (IPSO) has handed down some decisions that are facing legal opposition, including one over an opinion piece that appeared in the Sun last August that suggested that the UK had a "Muslim problem." After its publication, many British MPs criticized its content, saying it used "Nazi-like language." Mr. Hammond eventually apologized.

Rachel Elgy complained to the agency that the author, Trevor Hammond, had breached two clauses of the Editors' Code of Practice (Accuracy and Discrimination). The agency found that the author had not mislead readers or discriminated against Muslims as a group. IPSO also acknowledged that the author of the opinion column, Mr. Kavanaugh, was a member of IPSO's Board, but did not participate in the review concerning the complaint against him. Read the entire ruling here.

Ms. Elgy is now preparing an appeal of IPSO's ruling. 

January 25, 2018 | Permalink

"Murphy Brown" Returning: CBS Is Bringing Back the Show In 2018/2019 Season

CBS has announced that it is rebooting Murphy Brown, the iconic comedy that starred Candice Bergen as a tv reporter. The show will air for at least 13 episodes, beginning in 2018. More here from the Washington Post.

Considering the way that the show treated politics and culture in the U.S. during the first Bush administration, I can imagine how it will address the current political climate. Should be quite entertaining.

January 25, 2018 | Permalink

Tuesday, January 23, 2018

"The Post" Receives Two Oscar Nominations; Meryl Streep Receives Yet Another Nom

The Post, the big screen film about the Washington Post starring 

has received two major Oscar nominations, including Best Picture and Best Actress (Meryl Streep).  This nomination marks the 21st time that  Ms. Streep has received an Oscar nom. She has won three times, for Kramer vs Kramer (1979), Sophie's Choice (1982), and The Iron Lady (2011). 

 More here from The Hollywood Reporter and fittingly, the Washington Post.


January 23, 2018 | Permalink

Monday, January 22, 2018

Montana's Governor Signs EO Requiring ISPs To Adhere To Net Neutrality Principles If They Want To Enter Into State Contracts

Via The Hill:

Steve Bullock, Montana's Governor, has signed an executive order that requires ISPs to adhere to net neutrality principles if they want to enter into state contracts. Noted Governor Bullock, 

“There has been a lot of talk around the country about how to respond to the recent decision by Federal Communications Commission to repeal net neutrality rules, which keep the internet free and open. It’s time to actually do something about it,” said Governor Bullock. “This is a simple step states can take to preserve and protect net neutrality. We can’t wait for folks in Washington DC to come to their senses and reinstate these rules.”


Here is a link to the text of the EO.

January 22, 2018 | Permalink

Sunday, January 21, 2018

Boudreau, Jeppesen, and Miric on Digital Mashups, Patents, and Copyright @KevinJBoudreau

Kevin Boudreau, Northeastern University, Department of Economics, College of Computer & Information Sciences, Harvard University Institute for Quantitive Social Science, National Bureau of Economic Research, Lars Bo Jeppesen, Copenhagen Business School, Department of Innovation and Organizational Economics, and Milan Miric, University of Southern California, Marshall School of Business, have published Digital 'Mash-Ups,' Patents, and Copyright. Here is the abstract.

Are our intellectual property (IP) institutions effective for a new generation of digital innovations? To make progress on this question, this paper analyzes a novel dataset on mobile app developers' use of patents and copyright, product revenues, licensing and outsourcing, and product and developer characteristics. We find within-industry heterogeneity in patent and copyright use, even among seemingly similar suppliers selling similar products. This pattern of IP use, along with consequent revenues and propensity to engage in IP trade is closely associated with the specific nature of innovations embodied in the products. Therefore, whereas patent and copyright use historically have differed across industries while tending to be similar across suppliers within the same industry, the “mash-up” nature of digital products (amalgams of programs, datasets, graphics, algorithms, etc.) results in unusually finer-grained differences within industries. Pliant digital product development choices and IP choices go hand-in-hand.

Download the article from SSRN at the link.

January 21, 2018 | Permalink

Saturday, January 20, 2018

Kahn on Denial, Memory Bans, and Social Media

Robert Kahn, University of St. Thomas School of Law (Minnesota), has published Denial, Memory Bans and Social Media. Here is the abstract.

We live in an age of ready availability of information… including hate speech, genocide denial and narratives of white supremacy. Encountering this information online can generate a feeling of uneasiness, even if one finds the offending material after a lengthy search. One possible response to this feeling of uneasiness is to ban the speech in question, and indeed many states have enacted restrictions on genocide denial and other denials of historical events (memory laws). In this paper, I examine memory laws in a social media age. The first section addresses the legal legitimacy of memory laws. These laws go beyond the traditional concern about incitement to hatred or violence that justifies hate speech bans. Next, I examine the effectiveness of memory bans. In a global internet age, states have opted for country-specific laws or global anti-denial campaigns. It is unclear, however, if either approach will succeed in removing all denialist content from the internet. At best, one can drive denial to the margins of society; one cannot remove it entirely. Finally, I turn to practical solutions. On the one hand, one can honor the memory threatened by denial, and try to restrict denial to corners of the web (as opposed to one’s virtual living room). In the end, however, the virtual world will likely continue to contain much we do not like, including denial. This requires a special type of tolerance, one based in resignation and rooted not in choice but in inevitability.

Download the article from SSRN at the link.

January 20, 2018 | Permalink

Friday, January 19, 2018

Levi on Real "Fake News" and Fake "Fake News" @MiamiLawSchool

Lili Levi, University of Miami School of Law, is publishing Real 'Fake News' and Fake 'Fake News' in volume 16 of the First Amendment Law Review. Here is the abstract.

“Fake news” has become the central inflammatory charge in media discourse in the United States since the 2016 presidential contest. In the political realm, both intentionally fabricated information and the “fake news” defense by politicians confronted with negative press reports can potentially influence public beliefs and possibly even skew electoral results. Perhaps even more insidiously, as evidenced by President Trump’s dismissal of the traditional press as the “enemy of the American people,” the “fake news” accusation can serve as a power-shifting governance mechanism to delegitimize the institutional press as a whole. Both these strategic uses of “fake news”—to achieve specific political results and to destabilize the press as an institution—are self-evidently very dangerous for democracy. As if this were not a sufficient threat to the democratic order, however, “fake news” is also a threat, inter alia, to the stability of the financial markets as well. Whether for competitive advantage, terror, or geopolitical gamesmanship, the deployment of market-affecting fabricated information is a looming danger ahead. Simply put, therefore, “fake news” presents profound—and likely increasing—challenges for both the public and private spheres today. In light of this complexity, no single—or simple—tactic is sufficient to address the variety of challenges posed by the multi-headed phenomenon of “fake news.” This Article suggests beginning with a three-pronged approach—focusing on platform self-regulation, audience information literacy, and—perhaps counterintuitively—empowerment of the press itself. First, despite distrust of platform self-regulation, there is reason to believe that the threats posed by “fake news” to commercial interests may stimulate constructive solutions. Second, while cognitive science reveals limits to traditional information literacy approaches, interdisciplinary engagement may enhance the effectiveness of inevitably iterative information literacy initiatives in the “fake news” context. Third, in contrast to suggested solutions exploring express governmental attempts to prohibit or limit “fake news” directly, the Article instead recommends a reversal of current doctrine and practice in the form of a broad-based expansion of affirmative rights for the press. If given expanded protections, the professional press can transform the modern context of “fake news” into an opportunity to shine as watchdog and, hopefully, thereby rebuild public trust. Tools to empower the professional press can help forge alliances between the conservative and liberal wings of the traditional media, thereby isolating and minimizing the impact of newly-rising alt-right media entrants. The results will surely be imperfect, but the alternative is worse: a neutered and supine press operating merely to entertain a fragmented and polarized audience in an increasingly authoritarian global political and commercial environment. The mainstream press today is both demonized by the right and at risk from the left’s recent attempts to desacralize the First Amendment on the ground of its rightward ideological drift. In questioning that development, the Article suggests that progressive scholars’ critiques of recent libertarian doctrinal developments regarding the freedom of speech should in no way impede the recognition and enhancement of the First Amendment’s protections for a free and independent press. In that spirit, the Article appeals to courts, legislators, and government actors at every level to back up an ostensible commitment to free speech with an equally robust commitment to a free press. It also calls on the press to revise its practices in response.

Download the article from SSRN at the link.

January 19, 2018 | Permalink

Thursday, January 18, 2018

Wu on Whether the First Amendment Is Obsolete @superwuster

Tim Wu, Columbia University Law School, has published Is the First Amendment Obsolete? as Columbia Public Law Research Paper No. 14-573. Here is the abstract.

The First Amendment was a dead letter for much of American history. Unfortunately, there is reason to fear it is entering a new period of political irrelevance. We live in a golden age of efforts by governments and other actors to control speech, discredit and harass the press, and manipulate public debate. Yet as these efforts mount, and the expressive environment deteriorates, the First Amendment has been confined to a narrow and frequently irrelevant role. Hence the question — when it comes to political speech in the twenty-first century, is the First Amendment obsolete? The most important change in the expressive environment can be boiled down to one idea: it is no longer speech itself that is scarce, but the attention of listeners. Emerging threats to public discourse take advantage of this change. Instead of targeting speakers directly, it targets listeners or it undermines speakers indirectly. More precisely, emerging techniques of speech control depend on (1) a range of new punishments, like unleashing “troll armies” to abuse the press and other critics, and (2) “fooding” tactics (sometimes called “reverse censorship”) that distort or drown out disfavored speech through the creation and dissemination of fake news, the payment of fake commentators, and the deployment of propaganda robots.

Download the article from SSRN at the link.

January 18, 2018 | Permalink

Bridy on Fearless Girl Meets Charging Bull: Copyright and the Regulation of Intertextuality @AnnemarieBridy

Annemarie Bridy, University of Idaho College of Law; Stanford Law School Center for Internet and Society, is publishing Fearless Girl Meets Charging Bull: Copyright and the Regulation of Intertextuality in the UC Irvine Law Review (2018). Here is the abstract.

This article approaches the Fearless Girl/Charging Bull controversy as a case study in how copyright law regulates conditions of interaction between existing artistic works and new ones, in order to protect the value and integrity of the former without diminishing production of the latter. To assess the merits of sculptor Arturo DiModica’s legal claims in light of the policies underlying copyright law, I turn to the theory of intertextuality and the work of two narrative theorists — M.M. Bakhtin and Gerard Genette. Bakhtin’s concept of dialogism and Genette’s concept of hypertextuality are especially useful for understanding how the intertextual relationship between Fearless Girl and Charging Bull fits within the range of work-to-work and author-to-author relationships with which literary theory and copyright law are mutually concerned. Analyzing the Fearless Girl controversy through the concepts of dialogism and hypertextuality surfaces a clash between DiModica’s Continental view of copyright as a guarantor of authorial supremacy and the utilitarian orientation of U.S. copyright law, which gives authors less control over “second-degree” texts than DiModica would like. My principal argument is that U.S. copyright law is hospitable to intertextuality by design — much more so than Continental author’s rights law, which encodes what Bakhtin would characterize as a monologic aesthetics centered on the work as an extension of authorial personality. By giving narrow scope to moral rights and broad scope to fair use, in particular to critical and transformative secondary uses, U.S. copyright law limits the ability of artists like DiModica to control the public’s perception of their works by dictating the terms on which other artists interact with them.

Download the article from SSRN at the link.

January 18, 2018 | Permalink

Tuesday, January 16, 2018

Mörä on The Challenge of Internet and Social Media on Shield Law Legislation @helsinkiuni

Tuomo Mörä, University of Helsinki, has published The Challenge of Internet and Social Media on Shield Law Legislation: The Four Dimensions of Reporter's Privilege. Here is the abstract.

Journalists’ right to use confidential information and anonymous sources is considered to be one of the cornerstones of press freedom and democracy. A legislation called shield law or reporter’s privilege protects journalists from being compelled to testify about confidential information, simplifies the situation regarding sources of delicate information, and ultimately advances the free flow of information in society. The rudimentary objectives of shield laws are widely accepted in democratic societies. The goal is to promote open communication about important but sensitive topics. In the absence of a privilege journalists would be more cautious of the consequences of their stories and sources would communicate less openly. If the sources believe that their identities may be disclosed, the future news sources may be hesitant to provide information and public discussion would suffer from so called chilling effect. In spite of rather commonly shared understanding of the benefits of shield laws as a vital part of journalisms watchdog function, there is a great deal of variations on how privilege is regulated in different countries, states, and territories. The scope of shield law, persons covered, interpretation power of judges, and exceptions for the main rule vary considerably among jurisdictions. The differences reflect not only details of stipulation but also fundamental principles behind the objectives of legislature. The balance between encouraging access to information and maintaining effective justice system is the core of the variations between jurisdictions. In order to gather sensitive/delicate news, journalists must sometimes guarantee their sources’ confidentiality. Courts and judges, on the other hand, have a competing interest in obtaining the information they need to prosecute criminal cases. The approach on this balance delineates the special characteristics of journalist’s privilege in each jurisdiction. This paper presents a classification of shield law legislations based on comparisons within and among Australia, Finland, Germany, Norway, Sweden, and the US.

Download the article from SSRN at the link.

January 16, 2018 | Permalink

Frosio on Re-Imagining Digital Copyright Through the Power of Imitation @GCFrosio

Giancarlo Frosio, University of Strasbourgh-CEIPI; Stanford University Law Center for Internet and Society, is publishing Re-Imagining Digital Copyright Through the Power of Imitation: Lessons from Confucius and Plato in volume 5 of the Peking University Transational Law Journal. Here is the abstract.

For millennia, Western and Eastern culture shared a common creative paradigm. From Confucian China, across the Hindu Kush with the Indian Mahābhārata, the Bible, the Koran and the Homeric epics, to Platonic mimēsis and Shakespeare’s “borrowed feathers,” our culture was created under a fully open regime of access to pre-existing expressions and re-use. Creativity used to be propelled by the power of imitation. However, modern policies have largely forgotten the cumulative and collaborative nature of creativity. Actually, the last three decades have witnessed an unprecedented expansion of intellectual property rights in sharp contrast with the open and participatory social norms governing creativity in the networked environment. Against this background, this paper discusses the reaction to traditional copyright policy and the emergence of a social movement re-imagining copyright according to a common tradition focusing on re-use, collaboration, access and cumulative creativity. This reaction builds upon copyright’s growing irrelevance in the public mind, especially among younger generations in the digital environment, because of the emergence of new economics of digital content distribution in the Internet. Along the way, the rise of the users, and the demise of traditional gatekeepers, forced a process of reconsideration of copyright’s rationale and welfare incentives. Scholarly and market alternatives to traditional copyright have been plenty, attempting to reconcile pre-modern, modern and post-modern creative paradigms. Building upon this body of research, proposals and practice, this Article will finally try to chart a roadmap for reform that reconnects Eastern and Western creative experience in light of a common past, looking for a shared future.

Download the article from SSRN at the link.

January 16, 2018 | Permalink

Sunday, January 14, 2018

FCC Chair Pai on the False Alert Issued In Hawaii

Federal Communications Chair Ajit Pai has issued a statement concerning the false alert announcing a missile attack on Hawaii. It says in part:

“The FCC’s investigation into this incident is well underway.  We have been in close contact with federal and state officials, gathering the facts about how this false alert was issued.  Based on the information we have collected so far, it appears that the government of Hawaii did not have reasonable safeguards or process controls in place to prevent the transmission of a false alert.

"Moving forward, we will focus on what steps need to be taken to prevent a similar incident from happening again."

January 14, 2018 | Permalink

Thursday, January 11, 2018

Wasserman on Police Misconduct, Video Recording, and Procedural Barriers To Rights Enforcement

Howard M. Wasserman, Florida International University College of Law, is publishing Police Misconduct, Video Recording, and Procedural Barriers to Rights Enforcement in the North Carolina Law Review (2018). Here is the abstract.

The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak for itself" and the procedural and evidentiary problems flowing from that mistaken belief; 2) the evidentiary advantages video provides police and prosecutors; 3) procedural limits on efforts to enforce a First Amendment right to record, such as qualified immunity and standing; and 4) the effects of video on government decisions to pursue criminal charges against police officers and to settle civil-rights suits alleging police misconduct.

Download the article from SSRN at the link.

January 11, 2018 | Permalink

Schauer on The Hostile Audience Revisited @UVALaw

Frederick Schauer, University of Virginia School of Law, has published The Hostile Audience Revisited in the Knight First Amendment Institute at Columbia University "Emerging Threats" Series (2017).

This essay, commissioned by the Knight First Amendment Institute at Columbia University, addresses the way in which recent events in Charlottesville and elsewhere have raised once again the First Amendment problem of the hostile audience. When speakers, protesters, and demonstrators are met with hostile and violent audience reactions, when, if ever, is it appropriate and constitutional to restrict the speakers in order to prevent or control violence? Most of the relevant Supreme Court cases are decades old, and arguably fail to address what are now perceived as genuine threats to public order and personal safety. Perhaps most significantly, little in the existing doctrinal landscape focuses on the cost question – just how much must a municipality (or university) expend in financial and human resources in order to protect the First Amendment rights of controversial, provocative, or racist speakers? Addressing this question exposes even larger questions about the costs of the First Amendment, and thus about who should bear those costs.

Download the article from SSRN at the link.

January 11, 2018 | Permalink

O'Dell on Comparative Defamation and Privacy Law--Irish Perspectives @cearta

Eoin O'Dell, Trinity College (Dublin), has published Comparative Defamation and Privacy Law - Irish Perspectives at 40 Dublin University Law Journal 236 (2017). Here is the abstract.

This piece is a review article of Andrew T Kenyon (ed) Comparative Defamation and Privacy Law (Cambridge University Press, 2016). In the Preamble to Bunreacht na hÉireann (the Irish Constitution), the People declare that they adopted the Constitution in 1937 so that “that the dignity and freedom of the individual may be assured”. The Supreme Court has regularly drawn on this rubric to give content to the fundamental rights protected by that document. The rights to freedom of expression, good name, and privacy are crucial to the dignity and freedom of the individual; this important book explores these rights in a wide variety of contexts across a broad range of jurisdictions and its conclusions could guide the development of many aspects of the law in Ireland and throughout the common law world. This book is a collection of first class, thought-provoking essays. They will repay careful study by practitioners and academics alike. And they will be of immense comparative value for the bar, the bench, and the academy. In particular, in Ireland, in helping to tease through the challenges of balancing or reconciling the rights to privacy, reputation or good name, and freedom of expression, these essays will help to ensure “that the dignity and freedom of the individual may be assured”, and the great promise of the Preamble to Bunreacht na hÉireann will be kept.

Download the essay from SSRN at the link.

January 11, 2018 | Permalink

Sprigman on Copyright and Creative Incentives: What We Know (and Don't) @CJSprigman

Christopher Jon Sprigman, New York University of Law, is publishing Copyright and Creative Incentives: What We Know (and Don't) in volume 55 of the Houston Law Review (2017). Here is the abstract.

The dominant justification for copyright in the United States is consequentialist. Without copyright, it is claimed, copyists will compete away the profits from new artistic and literary creativity, thereby suppressing incentives to create new artistic and literary works in the first place. This is a sensible theory. But is it true? On that question, we have little evidence. This Article examines some of the empirical work examining the link between copyright and the incentive to create new works. The Article introduces readers to a sampling of the existing empirical work, which includes event studies (aka, natural experiments), qualitative studies of creativity undertaken in so-called “low-IP” settings, and laboratory experiments. At this early point in the empirical study of copyright, the link between copyright and creative incentives appears to be considerably less robust than theory may have led us to expect. This Article is adapted from a talk given at the University of Houston Law Center’s Institute for Intellectual Property and Information Law Spring Lecture (presented March 30, 2017).

Download the article from SSRN at the link.

January 11, 2018 | Permalink

Palmedo on The Impact of Copyright Exceptions for Researchers on Scholarly Output @mikepalmedo

Mike Palmedo, American University Program on Information Justice and Intellectual Property, has published The Impact of Copyright Exceptions for Researchers on Scholarly Output. Here is the abstract.

Surveys of scholars in the science and health fields have identified high journal prices to be one of many impediments to the writing and publishing of new works. One possible solution to this problem is the expansion of copyright exceptions that allow unauthorized access to copyrighted works for the purpose of conducting further research. This paper tests the link between copyright exceptions for researchers and the publishing output of health and science scholars at the country-subject level, using data on change in copyright law from the PIJIP Copyright User Rights database. It finds that scientists residing in countries that implement more robust research exceptions to copyright published more papers and books in subsequent years. It further finds that greater access to the internet has expanded scholarly output without diminishing the role of copyright exceptions. This paper hypothesizes that research exceptions should carry greater weight in the Global South, but the data does not support this.

Download the article from SSRN at the link.

January 11, 2018 | Permalink