Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, September 24, 2018

Krotoszynski on Whistleblowing Speech and the First Amendment @IndianaLJ

Ronald J. Krotoszynski, Jr., has published Whistleblowing Speech and the First Amendment at 93 Indiana Law Journal 267 (2018). Here is the abstract.

Alexander Meiklejohn, the iconic First Amendment scholar who expounded the democratic self-government theory of the freedom of speech, posited that for democratic self-government to function, the voters themselves must possess the information necessary to hold the government accountable. Yet, the information necessary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself, and government officials often prove highly reluctant to share information that reflects badly on them and their work. The lack of critically important information about the government’s performance makes it difficult, if not impossible, for voters to hold government accountable on Election Day. To date, the federal courts have failed to recognize the crucial role that government employees often play in providing voters with the information necessary to make wise electoral decisions. The Connick/Pickering doctrine conveys only modest protection on government employees who engage in whistleblowing speech. Moreover, this doctrine fails to take into account directly the value and importance of whistleblowing speech to voters. Whistleblowing Speech and the First Amendment calls for the recognition of a new subcategory of government employee speech, whistleblowing speech, and proposes more rigorous First Amendment protection for such speech. Simply put, contemporary First Amendment theory and practice fails to provide sufficient protection to government employees who engage in whistleblowing speech that calls the body politic’s attention to wrongdoing, corruption, and malfeasance within government agencies. If we want government employees to speak, rather than remain silent, stronger constitutional medicine than Connick/Pickering will be required. This Article constitutes part of a longer, book-length project, The Disappearing First Amendment, which Cambridge University Press will be publishing in 2019. The book will show how, in a variety of important contexts, free speech rights have contracted, rather than expanded, under the Rehnquist and Roberts Courts. Salient examples include the speech rights of government employees, as well as access to public property for expressive activities, the speech rights of students and educators, transborder speech, and newsgathering and reporting activities. The book posits that antipathy toward judicial discretion in free speech cases provides a partial explanation for the contemporary Supreme Court’s inconsistent protection of First Amendment rights, as does a more general willingness to tether First Amendment rights to the ownership of property.

Download the article from SSRN at the link.

September 24, 2018 | Permalink

Cram and Fenwick on Protecting Free Speech and Academic Freedom in Universities @law_leeds @DurhamLawSchool

Ian Cram, University of Leeds, and Helen Fenwick, University of Durham, have published Protecting Free Speech and Academic Freedom in Universities at 81 Modern Law Review 825 (2018). Here is the abstract.

Restrictions on speaking events in universities have been created both by recent student‐led efforts at ‘no‐platforming’ and by Part 5 of the Counter‐terrorism and Security Act 2015 which placed aspects of the government's Prevent strategy on a statutory basis. The statutory Prevent duty in universities includes, under the accompanying Guidance, curbing or monitoring events that could have an impact in drawing persons into terrorism. This article places the combined impact of Part 5 and student‐led curbs on campus speech in context by juxtaposing pre‐existing restrictions with the various free speech duties of universities. Focusing on speaking events, it evaluates the resulting state of free speech and academic freedom in universities. It finds potential violations of established free speech norms due to the impact of pre‐emptive strikes against some campus‐linked speech articulating non‐mainstream viewpoints. But it also argues that not all such speech has a strong foundation within such norms.

The full text is not available from SSRN.

September 24, 2018 | Permalink

Friday, September 21, 2018

Does the Tort of Defamation By Implication Exist in Idaho?

The Idaho Supreme Court hears a case today that presents the issue of whether the tort of defamation by implication exists in Idaho law. The case is Verity v. USA Today and John/Jane Does. 

Here's a link to the Court's livestream.


More here from the Bonner Daily

September 21, 2018 | Permalink

Thursday, September 20, 2018

Lemley on Fame, Parody, and Policing in Trademark Law @marklemley

Mark A. Lemley, Stanford Law School, has published Fame, Parody, and Policing in Trademark Law as a Stanford Public Law Working Paper.

Trademark owners regularly overreach. They often threaten or sue people they have no business suing, including satirists, parodists, non-commercial users, and gripe sites. When they do, they often justify their aggressive legal conduct by pointing to the need to protect their trademarks by policing infringement. Courts have in fact indicated at various points that policing is, if not strictly necessary, at least a way to strengthen a mark. But courts have never held that efforts to block speech-related uses are necessary or even helpful in obtaining a strong mark. Several scholars have accordingly argued that overzealous policing is unnecessary, that it has harmful effects, and that we ought to punish it. But trademark owners continue to do it, in part because it is largely (though not completely) costless and because if there is even a chance a failure to police will cost you your trademark you won’t want to take the chance. So trademark law currently not only doesn’t prevent overreaching; it affirmatively encourages it. In this article, I suggest a way that we can align trademark owner enforcement incentives with good public policy. The presence of unauthorized parodies, satires, and complaint sites involving a mark should be evidence of the fame of the mark, and perhaps even a requirement for status as a famous mark. Taking this approach would be consistent with what we know about how society interacts with trademarks. Famous marks become part of a social conversation in a way that ordinary marks don’t. My approach has empirical support: the best-known brands draw more parodies and criticism sites than non-famous marks, and those parodies don’t interfere with the fame of the mark. And it would give trademark owners an affirmative reason to leave critics, satirists, and parodists alone.

Download the article from SSRN at the link.

September 20, 2018 | Permalink

Wednesday, September 12, 2018

Steinberg on Morphed Child Pornography and the First Amendment @sgsteinberg

Stacey Steinberg, University of Florida College of Law, is publishing Changing Faces: Morphed Child Pornography and the First Amendment in the Emory Law Journal (2019). Here is the abstract.

Technology has changed the face of child pornography. The Supreme Court has held that child pornography harms a child both in the creation of the image and the circulation of the image, and thus has ruled that the possession and distribution of child pornography falls outside the realm of First Amendment protections. However, today’s images depicting child pornography do not always depict an actual child engaged in a pornographic act. Instead, some images depicting child pornography are “morphed images.” Morphed child pornography is created when the innocent image of a child is combined with a separate, sexually explicit image, usually of an adult. The children depicted in these images were not harmed in the creation of the image, as they were not photographed while engaging in a sexual or obscene act. Nevertheless, the circulation of these images harms children. The distribution, or potential distribution, is damaging to the depicted child’s emotional well-being and reputation. Furthermore, these morphed images could cause additional harm to other children, as pedophiles use child pornography to groom future victims. In response to the changing face of child pornography and the harms associated with it, Congress enacted the PROTECT Act, which bans morphed images like the ones described above. However, there is still much to be done to protect children’s images online. First, the Supreme Court must uphold the PROTECT Act, finding that morphed child pornography is outside the scope of the First Amendment. Second, to respond to the harms morphed child pornography causes, states must amend their statutory definitions of child pornography to include in its definition any image that is “created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.” Lastly, parents must be cognizant of the risk associated with over-sharing pictures as these images can be stolen and then used for illicit purposes. This proposal balances a defendant’s First Amendment right to free speech against the harms caused by the circulation of morphed images depicting child pornography.

Download the article from SSRN at the link.

September 12, 2018 | Permalink

Monday, September 10, 2018

Aviel on Rule 8.4(g) and the First Amendment: Distinguishing Between Discrimination and Free Speech @SturmCOL

Rebecca Aviel, University of Denver College of Law, is publishing Rule 8.4(g) and the First Amendment: Distinguishing between Discrimination and Free Speech in volume 31 of the Georgetown Journal of Legal Ethics (2018). Here is the abstract.

The ABA’s recent adoption of Model Rule 8.4(g), making it sanctionable for lawyers to engage in discrimination or harassment, has garnered a great deal of attention, much of it focused on whether the rule violates an attorney’s right to free speech. This article attempts to bring clarity to the discussion. It emphasizes the significance of claiming, as some have done, that the rule is facially invalid because it is overbroad, and then engages in the close textual analysis necessary to evaluate claims of overbreadth. This analysis yields important insight about how the rule might be revised to better reflect the crucial distinction between discrimination and harassment on the one hand and the expression of controversial viewpoints on the other. It then explains why the rule’s coverage of all conduct “related to the practice of law” is neither unprecedented nor particularly troubling against the existing back-drop of lawyer regulation and concludes with a few thoughts about the values most central to professional identity.

Download the article from SSRN at the link.

September 10, 2018 | Permalink

U.S. Prisons and Restriction of Freedom of Expression on Security Grounds @PENAmerican

From the Guardian: reporting on surveillance, investigation, and censorship of inmate participants and some others (not inmates) in PEN America's Prison Writing Program, based on security concerns.  The Guardian article begins:


Did or did not the prisoner turn into a bird and fly away? That’s what the officials want to know in Matthew Mendoza’s Freedom Feather, a short dialogue-driven work of magical realism. The play was originally censored by the Texas Department of Corrections for the use of the word escape. It’s hard to imagine a single word in a dramatic work constituting a safety risk – especially in a context so exaggeratedly fictional it becomes fantastical. But that was the only articulated official justification.


Here's a link to PEN America's press release on federal prison policy on the issue.

September 10, 2018 | Permalink

Thursday, September 6, 2018

Vandenbussche on Rethinking Non-Pecuniary Remedies for Defamation @WVandenbussche

Wannes Vandenbussche, Institute for the Law of Obligations, KU Leuven, has published Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies. Here is the abstract.

Legal scholars have been encouraged to examine alternative remedies for defamation in response to an increasing criticism of monetary damages. Various types of non-pecuniary relief (such as retraction, right of reply, publication of court decisions or declaratory judgement) have been made the subject of elaborate studies. The role of court-ordered apologies as a non-pecuniary defamation remedy has been scarcely discussed in academic literature. The work that has been done focuses either on the remedial role of apologies in East Asian jurisdictions or on apologies as a civil legal remedy aimed at emotional recovery for specific kinds of harm (such as personal injury, invasions of privacy or violations of equal opportunity legislation). These studies, which mostly go beyond the scope of defamation law, pay very little attention to the Western legal tradition. The Anglo-American and continental-European legal culture are considered non-apologetic traditions, which are clearly unfamiliar with the remedy of imposing apologies. Contrary to the conventional wisdom, this article shows that court-ordered apologies are available as a defamation remedy in a non-negligible part of the Western legal tradition. This is demonstrated through a profound comparative legal analysis of continental legal systems (Western, Central as well as Eastern European jurisdictions), a mixed legal system (South-Africa) and common law systems. Simultaneously, this article allows us to gain a better understanding of why this remedy is still applied in some jurisdictions and why it has disappeared in others. The article proceeds on the premise that a case can be made for court-ordered apologies as a defamation remedy in the Western legal tradition, and accordingly, it is argued that they are worth considering in jurisdictions which do not make use (anymore) of this legal tool. First, in operating a symbolic reversal of the original defamatory assertion, court-ordered apologies are more likely to produce a shaming effect than other remedies. Second, it is possible to attribute an educative function to court-ordered apologies, allowing courts to educate members of the community about what constitutes unlawful and injurious statements. When examining the implementation of court-ordered apologies as defamation remedy, a civil-common law divide comes to the fore. Whereas apologies can be introduced in continental legal systems as a form of reparation, it is harder to import them into Anglo-American legal systems. The same goes for the reconciliation of this type of relief with freedom of expression, which is simpler to attain under the balancing test of the European Court of Human Right than in some common law systems.

Download the article from SSRN at the link.

September 6, 2018 | Permalink

Wednesday, September 5, 2018

Shepard and Culver on Culture Wars on Campus: Academic Freedom, the First Amendment and Partisan Outrage in Polarized Times @jasonmshepard

Jason M. Shepard, California State University, Fullerton, and Kathleen Bartzen Culver, University of Wisconsin, Madison, Center for Journalism Ethics, and University of Wisconsin, Madison, School of Journalism & Mass Communication, have published Culture Wars on Campus: Academic Freedom, the First Amendment and Partisan Outrage in Polarized Times at 55 San Diego Law Review 87 (2018). Here is the abstract.

After a California community college professor called the election of President Donald Trump an “act of terrorism” in her classroom the week after the vote, a student-recorded viral video sparked a national conservative media firestorm. Critics said the professor should be fired for outrageous liberal bias, while supporters defended her comments as being protected by academic freedom and the First Amendment. The student, meanwhile, was suspended for his unauthorized recording while defenders decried his punishment as evidence of anti-conservative discrimination and harassment. By examining tensions between faculty and student speech rights, the use of technologies to take ideological disagreements “viral” through partisan media, and the role of colleges and universities in culture wars, this paper finds deep divisions in views of rights and responsibilities of faculty, students, and institutions in campus free-expression controversies.

Download the article from SSRN at the link.

September 5, 2018 | Permalink

Snow on Denying Trademark for Scandalous Speech

Ned Snow, University of South Carolina, is published Denying Trademark for Scandalous Speech in volume 51 of the UC Davis Law Review (2018). Here is the abstract.

Recently in Matal v. Tam, the Supreme Court held that the disparagement clause of the Lanham Act was unconstitutional. The disparagement clause prevented registration of disparaging trademarks — i.e., marks that were offensively disparaging toward individuals — such that the clause could have induced mark owners to refrain from speaking offensive views. The potential for self-censorship led the Court to recognize a First Amendment violation. Importantly, the Justices unanimously agreed that the clause was viewpoint discriminatory. Viewpoint discrimination was damning. This central point of Tam calls into question another clause in the Lanham Act — the scandalous clause — which prevents registration of marks that are offensive to the public’s sense of decency and propriety. Simply put, does Tam suggest the unconstitutionality of the scandalous clause? The Federal Circuit recently answered this question in In re Brunetti, holding that in view of Tam, the scandalous clause violated the First Amendment. This Essay concludes otherwise. The Essay argues that the scandalous clause does not violate the First Amendment if the clause is interpreted as restricting only sexually-explicit and vulgar content. In particular, this interpretation implies that the clause is viewpoint neutral because viewpoint discrimination entails the government targeting content that communicates an opposable view — i.e., an opinion or assertion. Content that is sexually explicit or vulgar does not communicate an opposable view: sexually-explicit content exists to stimulate a sexual response; vulgar content exists to evoke emotive force. Neither represents an opinion that may be disagreed with. Indeed, unlike in Tam, the offensiveness of such content does not stem from any idea that the content proposes. Rather, the offensiveness derives from the public display and social effects of the content. And that matters in the viewpoint analysis. Furthermore, the proper framework for evaluating the scandalous clause’s restriction of speech must be the limited public forum. Under that framework, various reasons justify the content-based restriction of the scandalous clause. Thus, as a viewpoint-neutral restriction that is justified under the limited-public-forum doctrine, the scandalous clause is constitutional.

Download the article from SSRN at the link.

September 5, 2018 | Permalink

Tuesday, September 4, 2018

Wang on Whether IP is "Disrupted" By the Algorithm That Feeds You Information in an Era of Fake News

Celeste Tien-hsin Wang, Max Planck Institute for Innovation and Competition, has published Is Intellectual Property ‘Disrupted’ by the Algorithm That Feeds You Information in an Era of Fake News? at 15 The Sciencs Po Law Review / La Revue des Juristes de Sciences Po 231 (2018). Here is the abstract.

In April, 2018, Facebook CEO Mark Zuckerberg was grilled by members of Congress in the United States Capitol in Washington, D.C. in a series of questions about the company’s best effort to protect privacy and act against Russian interference in the 2016 election. For the reason that Facebook merely considers itself as “a technology company—one that has built a ‘platform for all ideas’,” it allows the News Feed Algorithm to respond to what the company deems the most important “kind” of information for the users. However, those contents in the information flow are sometimes cheaply generated by what we called “content farms” and can be intentionally manipulated by data analytics firms, such as Cambridge Analytica. Everyone is asking: everyone thinks Cambridge Analytica is dangerous, but no one can describe in great detail what it has done. Just the same as what we are facing now: everyone thinks Big Data is an ever-changing and far-reaching technology, but no one exactly knows why intellectual property (IP) laws should play an important part in regulating Big Data. Here, in a downright way, the issue is: is the function of IP laws “disrupted” or “undisrupted” by the News Feed Algorithm? The insight to answer this question may be obtained from the classical debate, “law of the horse,” between Judge Easterbrook of the United States Court of Appeals for the Seventh Circuit and Professor Lawrence Lessig: do we have a special need to adjust IP laws specially for Big Data, or we should go back to the basics: what is IP law in general and what kind of role does IP play in the society and cyber-society? Significantly, the News Feed Algorithm is targeting the mass who read the information, while IP laws are about the protection of Big Data companies’ valuable IP assets, such as patent protection for the algorithm. All the issues have the same concern: does public law have the supremacy to “disrupt” private property protection?

Download the article from SSRN at the link.

September 4, 2018 | Permalink