Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 28, 2018

Shooting at Capital Gazette In Annapolis Leaves at Least Five Dead, Numerous People Injured

Annapolis law enforcement confirms at least five people dead and several others wounded at the Capital Gazette offices, the latest in a series of of workplace and school shootings in this country over the past few years.  Police have one person in custody. Reporter Phil Davis, who works at the paper, tweeted from his account, @PhilDavis_CG, giving a raw account of the events, including this heart-wrenching communication, "There is nothing more terrifying than hearing multiple people get shot while you're under your desk and then hear the gunman reload[.]"

More coverage from local stations WBALTV and ABC13EyewitnessNews.

June 28, 2018 | Permalink

Tuesday, June 26, 2018

Cohen-Almagor on Taking North American White Supremacist Groups Seriously @almagor35

Raphael Cohen-Almagor, University of Hull, has published Taking North American White Supremacist Groups Seriously: The Scope and the Challenge of Hate Speech on the Internet at 7 International Journal of Crime, Justice, and Social Democracy 38 (2018). Here is the abstract.

This article aims to address two questions: (1) How does hate speech manifest on North American white supremacist websites and (2) Is there a connection between online hate speech and hate crime? Section I defines hate speech and explains the research methodology upon which the article is based. Section II analyses the ways that hate groups utilise the Internet and their purposes in doing so, examining the content and the functions of hate sites as well as the agenda of hate mongers. Section III explores the connection between hate speech and hate crime. It is argued that there is sufficient evidence to suggest that speech can and does inspire crime. The article is based in the main on primary sources: a close study of dozens of hate websites, and is informed by more than 50 interviews and discussions with experts in the field.

Download the article from SSRN at the link.

June 26, 2018 | Permalink

Monday, June 25, 2018

Jayne on the Fairness Doctrine 2.0 @mercatus

Mike Jayne, Mercatus Center at George Mason University, is publishing Fairness Doctrine 2.0: The Ever-Expanding Definition of Neutrality Under the First Amendment in volume 16 of the First Amendment Law Review (2018). Here is the abstract.

Since the early days of dial-up service, prominent voices have urged government regulation of speech on the Internet. A cross-section of policymakers and pundits are now calling for a change in the status quo, while others warn that recent developments could spur a departure from the “hands-off” policy of the FCC. During the net neutrality debates, many critics feared that the Open Internet Order would lead to greater FCC control of the Internet, with some even going further: warning that the agency would implement some form of a new Fairness Doctrine for the medium. Despite the Restoring Internet Freedom’s essential repeal of the Open Internet Order, these concerns have been given credence by calls for crackdowns on fake news and extremism; for platform, search, and app neutrality; and for government intervention to stop the censorship policies of Silicon Valley companies. This Article begins by surveying several developments that give rise to this alarmism. It examines whether the FCC would have the statutory authority to regulate content on the Internet. It then considers several policy proposals before assessing the constitutionality of any regulatory intervention. It argues that greater regulation of online political content will chill free speech, spawn unintended consequences, and run afoul of the Constitution. It argues that an attempt to enforce any type of Fairness Doctrine for the Internet will be too difficult to administer, leading to suffocating litigation; unfair application to ISPs, platforms, and websites; and an intellectually diminished Internet.

Download the article from SSRN at the link.

June 25, 2018 | Permalink

Thursday, June 21, 2018

Feldman on Postmodern Free Expression

Stephen Matthew Feldman, University of Wyoming College of Law, has published Postmodern Free Expression: A Philosophical Rationale for the Digital Age at 100 Marquette Law Review 1123 (2017). Here is the abstract.

Three philosophical rationales--search-for-truth, self-governance, and self-fulfillment--have animated discussions of free expression for decades. Each rationale emerged and attained prominence in American jurisprudence in specific political and cultural circumstances. Moreover, each rationale shares a foundational commitment to the classical liberal (modernist) self. But the three traditional rationales are incompatible with our digital age. In particular, the idea of the classical liberal self enjoying maximum liberty in a private sphere does not fit in the postmodern information society. The time for a new rationale has arrived. The same sociocultural conditions that undermine the traditional rationales suggest a self-emergence rationale built on the feminist concept of relational autonomy. This novel rationale constitutionally protects expression that fosters the ongoing creative and dynamic process of self-emergence. As such, the rationale justifies protecting expression concerned with the emergent self's struggle to define itself and the broader culture. The self-emergence rationale has important ramifications, especially for free-expression issues related to the Internet. The Roberts Court has invoked the traditional rationales in granting expansive first-amendment protections to corporations. Many Internet-related issues involve multinational corporations, such as Google, Verizon, and Facebook. But under the self-emergence rationale, publicly held business corporations should not have free-speech rights for two reasons. First, they have fixed rather than emergent natures. Second, they manipulate and limit the sociocultural space available for the autonomous self-emergence of individuals.

Download the article from SSRN at the link.

June 21, 2018 | Permalink

Wednesday, June 20, 2018

Law, Borders, and Speech Conference 2017

Law, Borders, and Speech Conference: Proceedings and Materials (2017). Here is the abstract.

Tensions between national law and the Internet’s global architecture have existed since the network’s earliest days. They took on new urgency in recent years, with developments like French regulators’ efforts to globally enforce “Right to Be Forgotten” laws. New cases, technologies, and platform responses seem to come along every few months. Expert-level discussion of these issues is dynamic and fast-moving -- but the written literature is only starting to catch up. This volume contributes to that literature by capturing insights from the Stanford Center for Internet and Society’s Law, Borders, and Speech conference. The event honored the twentieth anniversary of David G. Post and David R. Johnson’s seminal Law and Borders article in the Stanford Law Review. It convened what one panelist called “the best folks on the subject in the country -- or probably the world,” from government, industry, civil society, and more. Vibrant discussion covered questions including * When should one country’s laws control speech and access to information around the world? * If the most meaningful ‘laws’ governing online speech are the ones made by private platforms, what does that mean for national governments and the rule of law? * Should Internet platforms use technical means to block countries where their services, or information posted by their users, violate national law? Should the answer depend on the country, the technology, or the law at issue? * How might these answers differ for specific areas of law, ranging from intellectual property to human rights? The Conference proceedings volume includes overviews of each panel from the public session of the Conference. Appended resources include links to key cases, a glossary of current blocking technologies, and a write-up of hypothetical scenarios for group discussion. The panel write-ups capture some of the most sophisticated thinking on current issues, ranging from the role of geoblocking technologies to the intersection of state and private power in regulating user behavior on platforms like Google or Facebook. The material is licensed under the Creative Commons CC-BY license. We hope it will be a valuable in prompting further conversations and innovative thinking about these challenging and rapidly evolving issues.

Download the text from SSRN at the link.

June 20, 2018 | Permalink

Grimmelmann on Whether Robot Transmissions Are Speech For First Amendment Purposes @grimmelm

James Grimmelmann, Cornell Law School, is publishing Speech in, Speech Out in Robotica: Speech Rights and Artificial Intelligence (Ronald K. L. Collins and David M. Skover, eds., Cambridge University Press 2018). Here is the abstract.

This invited short response was published as part of Ronald K.L. Collins and David M. Skover's book Robotica: Speech Rights and Artificial Intelligence (Cambridge University Press 2018). Collins and Skover make a two-step argument about "whether and why First Amendment coverage given to traditional forms of speech should be extended to the data processed and transmitted by robots." First, they assert (based on reader-response literary criticism) that free speech theory can be "intentionless": what matters is a listener's experience of meaning rather than a speaker's intentions. Second, they conclude that therefore utility will become the new First Amendment norm. The premise is right, but the conclusion does not follow. Sometimes robotic transmissions are speech and sometimes they aren't, so the proper question is not "whether and why?" but "when?" Collins and Skover are right that listeners' experiences can substitute for speakers' intentions, and in a technological age this will often be a more principled basis for grounding speech claims. But robotic "speech" can be useful for reasons that are not closely linked to listeners' experiences, and in these cases their proposed "norm of utility" is not really a free speech norm.

Download the essay from SSRN at the link.

June 20, 2018 | Permalink

Monday, June 18, 2018

Byron, Molidor, and Cantu on US Newspapers' Portrayals of Home Invasion Crime

Reginald A. Byron, William S. Molidor, and Andrew Cantu, all of Southwestern University, have published US Newspapers’ Portrayals of Home Invasion Crime at 57 Howard Journal of Crime and Criminal Justice 250 (2018). Here is the abstract.

This article presents the first known analysis of US newspaper portrayals of ‘home invasion’ crime by quantitatively investigating over 1,000 cases of home invasion drawn from 15 geographically spread city newspapers. In line with the concept of moral panic, descriptive statistics suggest a recent marked increase in the usage of the term ‘home invasion’ among newspapers. Additionally, regression analyses predicting levels of coverage suggest that a market‐driven model of news production, invoking a fearful worst‐case scenario, prevails. Victim or suspect fatalities, the number of victims or suspects, and the type of weapon reported, all generally predict the word count of initial articles and the likelihood of a follow‐up article. Analyses also partially support the hierarchy of victimisation hypothesis. We conclude by cautioning that citizens and legislators should consider these findings when calling for new legislation and appeal to criminologists to produce comprehensive empirical analyses on home invasion crime.

The full text is not available from SSRN.

June 18, 2018 | Permalink

Wednesday, June 13, 2018

Rothman on The Right of Publicity: Privacy Reimagined For a Public World (Introduction) @profrothman

Jennifer Rothman, Loyola Law School (Los Angeles), has published The Right of Publicity: Privacy Reimagined for a Public World (Introduction) (Harvard University Press, 2018). Here is the abstract.

THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard University Press 2018), 256 pages, considers the opportunities and risks that today’s right of publicity laws pose. The right of publicity has become a negative force ― suppressing speech, blocking otherwise lawful uses of copyrighted works, forcing commercialization of the dead, and stripping people of ownership of their own identities. But this need not be so. The right of publicity has an important and powerful core insight that originated with the right of privacy ― that we should have some control over how others use our names and likenesses. Rothman shows how the right has lost its way. Rothman contends that the right got off track when it transformed from a personal right, rooted in the individual (the "identity-holder"), into a powerful intellectual property right, external to the person, that can sold or taken by a nonidentity-holding "publicity-holder." The wrong turns by the right of publicity have been driven and continued by a host of mythologies that have sprung up surrounding both it and its predecessor, the right of privacy. The first part of the book uses extensive archival research to debunk the common, though erroneous, stories about the two rights. The second part develops how today’s right of publicity came to be understood as an intellectual property right, different in nature from the right of privacy. In this part of the book, Rothman challenges the common justifications for having an IP-like right of publicity that is separate and apart from a right of privacy. In the final part of the book, Rothman tackles the three most pressing challenges posed by today’s right of publicity ― its threat to individual ownership and control of one’s own identity, its threat to free speech, and its conflicts with copyright law. Rothman concludes by providing a number of recommendations for putting the right of publicity back on course. The downloadable document is an excerpt of the Introduction to the book. The complete work is currently available from Harvard University Press and other book sellers.

Download the Introduction from SSRN at the link.

June 13, 2018 | Permalink

Tuesday, June 12, 2018

Read Judge Leon's A.T.T.-Time Warner Decision

Read U. S. District Court Judge Richard Leon's (lengthy) A.T.& T./Time Warner merger decision, courtesy of a CNBC link.


Discussion here (CBS), Variety, CNBC. 

June 12, 2018 | Permalink

Thursday, June 7, 2018

McCutcheon on Digital Access to Culture: Copyright in Photographs of Two-Dimensional Art Under Australian Copyright Law @UWALawSchool

Jani McCutcheon, University of Western Australia, is publishing Digital Access to Culture: Copyright in Photographs of Two-Dimensional Art Under Australian Copyright Law in volume 7 of the Queen Mary Journal of Intellectual Property (2017). Here is the abstract.

Photographs of cultural collections are an essential means of disseminating art and democratizing access to culture. This article reviews the policies of five major Australian galleries on access to their collections. It finds they tend to claim copyright in photographs of their collections, including of public domain works. This reflects a perceived entitlement to control access to their digital collections, often bolstered by a misstatement of copyright exceptions, restrictive quasi-copyright contract terms, licensing practices, and physical property rights in photography's appurtenances. This curbs the emancipatory potential of digitization, generating a conflict between the property interests of cultural institutions and the public interest in enhanced access to culture. The problem is particularly acute with respect to images of public domain art, exclusive control over which diminishes the public domain. This article considers the novel question of whether copyright subsists in photographs of two-dimensional art under Australian law, arguing that such photographs lack the originality indispensable to copyright subsistence. This conclusion significantly undermines cultural institutions’ licensing models and challenges misconceptions of property rights in the photographic surrogates of two-dimensional cultural objects. The article urges cultural institutions to liberate the digital surrogates of public domain art to enhance access to cultural capital.

Download the article from SSRN at the link.

June 7, 2018 | Permalink

McCutcheon on Copyrighting Culture: Photography and the Public Domain @UWALawSchool

Jani McCutcheon, University of Western Australia Law School, is publishing Copyrighting Culture: Photography and the Public Domain in Photography and Culture (forthcoming). Here is the abstract.

This article is inspired by the New York Metropolitan Museum of Art’s recent announcement that it will make 375,000 high-resolution photographs of its public domain artworks available without restriction, waiving any copyright it may have in the photographs. The announcement prompts reflection on the intersection between the photograph, copyright, the practices of cultural institutions, and the dissemination of cultural goods. The article notes how the photograph is an essential fulcrum in the contemporary dissemination of culture, and how this can be chilled by control over the photograph through copyright, but also through contract and the physical possession of photography’s ephemera. This leads to tensions between the property interests of cultural institutions and the public interest in accessing cultural artifacts through the medium of the photograph. The article probes the copyright status of photographs of public domain works, and explains how different courts have navigated the issue. It concludes that photographs of public domain artworks lack the originality essential to copyright subsistence, destabilizing the foundations of cultural institutions’ licensing models and public perceptions of property in photographic surrogates of public domain paintings. To capitalize on the socio-cultural benefits of the photograph as a mechanism of cultural dissemination, more cultural institutions must emulate the Met, and dispel the illusion of private property rights in the public domain.

The full text is not available for download from SSRN.

June 7, 2018 | Permalink

Wednesday, June 6, 2018

Rolph and Douglas on Rebel Wilson's Pitch Perfect Defamation Victory @dkrolph @MikeCDouglas @RebelWilson

David Rolph, University of Sydney Law School, and Michael Douglas, University of Western Australia Law School, have published Rebel Wilson's Pitch Perfect Defamation Victory at 29 Entertainment Law Review 37 (2018). Here is the abstract.

Few successful defamation plaintiffs are awarded six figure defamation damages in Australia. This is principally because damages for non-economic loss in defamation claims — the principal, indeed usually the only, head of damages sought — are now capped under statute. Few high-profile celebrities sue for defamation to final judgment in Australian courts. So when the comedian and actress, Rebel Wilson, was recently awarded almost AUD 4.57 million damages by a judge of the Supreme Court of Victoria, the case is newsworthy and noteworthy. Wilson sued a number of related women’s magazine titles essentially over allegations that she serially lied about many aspects of her life. The award of damages to Wilson is the largest ever made by an Australian court for a defamation claim. Besides the record-breaking quantum, Wilson’s claim against Bauer Media is important because it is the first time the statutory cap on damages for non-economic loss — an important feature of the national, uniform defamation laws introduced a little over a decade ago —has been exceeded. It is also significant because not only is it one of the rare cases in Australia where damages for economic loss have been sought and granted, it is the first case in Australia where damages for economic loss have been calculated on the basis of loss of opportunity. Wilson v Bauer Media also raises some difficult doctrinal questions of the interaction between defamation law and conflict of laws, where an international celebrity sues locally for damage to reputation which, due to the "grapevine effect", occurs outside the jurisdiction.

Download the article from SSRN at the link.

June 6, 2018 | Permalink

Monday, June 4, 2018

Gilden on Sex, Death, and Intellectual Property @andrew_gilden

Andrew Gilden, Willamette University College of Law, is publishing Sex, Death, and Intellectual Property in the Harvard Journal of Law & Technology. Here is the abstract.

The role of intellectual property is changing. IP traditionally is characterized as providing economic incentives to invest in creative production or as a reward for intellectual labor, and accordingly IP laws typically are associated with the needs of corporate creators and celebrity artists. In an era of smartphones and social media, however, IP has become a tool for a diverse range of vulnerable individuals to assert autonomy within unequal and risky digital environments. This paper examines cases in which IP is not being used to fortify economic incentives or reward labor but instead as a way to manage boundaries around sensitive and intimate social activities. These include lawsuits to combat the nonconsensual dissemination of sexual imagery and lawsuits by families of deceased artists and public figures to shape the cultural memory of the deceased. IP theory has often resisted addressing questions of sexual autonomy, privacy, or family mourning, yet IP is playing an increasingly important role in mediating each. Many scholars have stressed that we no longer need IP laws to spur widespread creative activity in the social media era; nevertheless, the social, emotional, and economic stakes surrounding control over image, sounds, and text arguably have never been greater. This paper makes two main contributions. First, it shows that IP often provides an effective tool for managing personal and social boundaries and as a result reinforces autonomy, community, and kinship among the diverse group of individuals who become rights holders. Individuals are using the old tools of IP to tackle a new and different set of socioeconomic challenges. Second, as a normative matter, it argues that IP provides some important practical and conceptual advantages over other legal responses to sexual privacy and family mourning. IP delegates context-sensitive boundary-management decisions to individuals, families, and communities—as opposed to more top-down criminal or regulatory solutions—and can be transferred within communities and across generations—as opposed to more individualized tort and contract solutions. Although undeniably a break from traditional theory, IP can be a useful means of legally responding to emergent cultural vulnerabilities.

Download the article from SSRN at the link.

June 4, 2018 | Permalink

Wehbe on the Free Press and National Security: Renewing the Case for a Federal Shield Law @FirstAmendLRev ‏

Alan Wehbé is publishing The Free Press and National Security: Renewing the Case for a Federal Shield Law in volume 16 of the the First Amendment Law Review (2018). Here is the abstract.

Freedom of the press is a cherished freedom enshrined in the First Amendment and upheld in myriad contexts. However, under the prevailing case law and without a federal shield law, the executive branch may be able to “annex the journalistic profession as an investigative arm of government” to reveal its‘confidential’ sources as aid to prosecution. This would serve to chill the freedom of the press and conflicts with the spirit of the First Amendment. In many cases, courts have failed to extend the common law to such protection. The legislative branch should step in to make such protection clear. For example, in the field of national security, where the stakes are so high, the Government utilizes federal laws, such as the Espionage Act, to prosecute so state shield laws provide inconsistent and insufficient protection against federal prosecution. The case for a federal shield law is heightened in the matters of national security, which is different and where, arguably, the stakes are higher. Based upon the aforementioned discussion, this Article reinvigorates the argument in favor of a federal reporter’s shield law, specifically implemented as an evidentiary privilege under the Federal Rules of Evidence.

Download the article from SSRN at the link.

June 4, 2018 | Permalink

Friday, June 1, 2018

"The Fourth Estate": A Documentary Series About the New York Times @nytimes @Showtime @lizgarbus

The new series The Fourth Estate is now streaming on Showtime.  Here's a description of the show from the network's website.


This documentary series about The New York Times in the Trump era illuminates critical issues facing journalism today. A chief task for The Times, long considered the "newspaper of record," is to find the best way to accurately and honestly cover this unconventional president, even as he tries to undermine them. Through extraordinary access and exclusive interviews, Oscar® nominated filmmaker Liz Garbus chronicles the tenacious men and women in the trenches who are fighting for the freedom of the press and America's right to know.

June 1, 2018 | Permalink

Young on Reynolds v. Times Newspapers @hilaryanyoung

Hilary Young, University of New Brunswick, Faculty of Law, is publishing Reynolds V Times Newspapers in Landmark Cases in Defamation (forthcoming). Here is the abstract.

This is about the Reynolds v Times Newspapers case, which led to the creation of a fault-based defamation defence in England and abroad. It sets out the facts and judicial history of the case, then comments on its influence in England, in other common law countries and its likely future influence.

Dowload the essay from SSRN at the link.

June 1, 2018 | Permalink