Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, December 31, 2018

Call For Applications: Investigative Fellowship at Leonard C. Goodman Institute For Investigative Reporting @inthesetimesmag

From the mailbox:


In These Times' Leonard C. Goodman Institute for Investigative Reporting is accepting applications for our 2019-2020 investigative fellowship.

We are looking for established investigative reporters and rising stars who require support and resources to report on issues they are passionate about.

This is a one-year, part-time remote position with flexible, project-driven scheduling. The typical time commitment will be 10-20 hours a week, but may be significantly higher in advance of major deadlines. Fellows are expected to produce 2-3 longform investigative pieces and related web stories/multimedia pieces. All stories will be published in In These Times or on Fellows may write for other outlets but will have 1-2 areas of investigative focus on which they report exclusively for In These Times. Publishing with In These Times is an opportunity to reach our 50,000 monthly print subscribers and 500,000 web visitors.

Salary: $40,000 part-time. Benefits include excellent medical and dental.

Topic areas of interest to the Goodman Institute include, but are not limited to: Corporate influence on public policy; labor practices; the war lobby and military contracting; privatization of public infrastructure; the dismantling of the social safety net; environmental justice; Wall Street.

The Goodman Institute will also provide material support for the investigations, including legal vetting, fact-checking, photography, editorial guidance, story promotion and coverage of travel and reporting expenses.

Applications are due by January 21. Fellowships will begin in May 2019, although there is some negotiability on the start date.

Apply here

In These Times welcomes candidates of all ethnicities and genders. Journalists of color are strongly encouraged to apply, as are reporters from other marginalized communities or groups that are underrepresented in investigative reporting.

The Leonard C. Goodman Institute for Investigative Reporting is dedicated to pursuing in-depth investigative projects that advance democracy and economic justice, amplify the work of social justice movements, and hold government and corporations accountable. Goodman investigations have the power to unearth corruption, impact legislation, and change the public narrative. Through the Goodman Institute, In These Times makes good on its founding belief that a crusading press and an informed public can create change.

This is the second year of the fellowship. Read about our 2018-2019 fellows—David Dayen, Valerie Vande Panne and Eli Day—here.

You can find a FAQ and examples of past Goodman Institute investigations here: If you have further questions, you may email Jessica <at> inthesetimes <dot> com

December 31, 2018 | Permalink

Wednesday, December 19, 2018

Puaschunder on Dignity and Utility of Privacy and Information Sharing in the Digital Big Data Age @TheNewSchool

Julia M. Puaschunder, Harvard University; New School for Social Research; Columbia University; Princeton University; George Washington Center for Internaitonal Business Education and Research; has published Dignity and Utility of Privacy and Information Sharing in the Digital Big Data Age. Here is the abstract.

Today enormous data storage capacities and computational power in the e-big data era have created unforeseen opportunities for big data hoarding corporations to reap hidden benefits from individual’s information sharing, which occurs bit by bit in small tranches over time. This paper presents underlying dignity and utility considerations when individual decision makers face the privacy versus information sharing predicament. Thereby the article unravels the legal foundations of dignity in privacy but also the behavioral economics of utility in communication and information sharing. For Human Resources managers the question arises whether to uphold human dignity in privacy or derive benefit from utility of information sharing. From legal and governance perspectives, the outlined ideas may stimulate the e-privacy discourse in the age of digitalization but also serving the greater goals of democratisation of information and upheld humane dignity in the realm of e-ethics in the big data era.

Download the article from SSRN at the link.

December 19, 2018 | Permalink

Tuesday, December 18, 2018

Dell on Fake News, Alternative Facts, and Disinformation: The Importance of Teaching Media Literacy To Law Students @TTV_Law

Marin Dell, Texas Tech University School of Law, has published Fake News, Alternative Facts, and Disinformation: The Importance of Teaching Media Literacy to Law Students. Here is the abstract.

Like legal education, media literacy education teaches critical thinking skills. Students with media literacy education are able to evaluate media messages and decide for themselves the truth of media. Media literacy education is critical at all levels, but it should be a required inclusion for every legal education program.

Download the article from SSRN at the link.

December 18, 2018 | Permalink

Monday, December 17, 2018

Kahn on Free Speech, Official History, and National Politics

Robert Kahn, University of St. Thomas School of Law (Minnesota), has published Free Speech, Official History and Nationalist Politics: Toward a Typology of Objections to Memory Laws as U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-25. Here is the abstract.

The past two decades have seen an explosion of memory laws, especially in Eastern Europe, and an explosion of objections to them. According to critics, memory laws (i) violate freedom of speech, (ii) create an official history, and (iii) foster a narrow, particularistic politics. This essay evaluates these competing arguments. The tendency to oppose memory laws on free speech grounds, or as state-enforced history, does not get at the deeper, political threat posed by a newer generation of more particularistic memory laws. At the same time, however, the political objection leans on an a priori premise that a nationalistic, exclusionary form of politics is morally illegitimate – which can be hard, pragmatically, for opponents of memory laws in Poland, Hungary or Russia to raise directly. Consequently, memory law opponents should emphasize universalistic objections based on speech and academic freedom while remaining sensitive to the exclusionary nature of some memory laws. As a final point, the academic study of memory laws would grow if it saw exclusionary memory laws as part of broader political project that, in countries like Denmark and Hungary, shapes the polity by restricting immigration and indoctrinating immigrants.

Download the article from SSRN at the link.

December 17, 2018 | Permalink

Thursday, December 13, 2018

Fourth Circuit Affirms Lower Court Ruling Finding In Favor of Defendants in "Under the Gun" Defamation Lawsuit

The Fourth Circuit affirmed the lower court in Virginia Citizens Defense League et al., v. Katie Couric et al., a defamation case involving the documentary "Under the Gun." In that case, the plaintiffs alleged that the creators of the film, including Ms. Couric, falsely portrayed them by presenting edited clips that showed them failing to respond to Ms. Couric's questions about background checks or showing they were "otherwise uninformed in their areas of expertise." Said the court, "The crux of appellants’ defamation claims is that the edited interview
“manufacture[d] a false exchange . . . that made [appellants] look ridiculous, incompetent, and ignorant about firearm ownership and sales, including the policies surrounding  background checks.” Although we agree that the filmmakers’ editing choices were questionable, the edited footage simply does not rise to the level of defamation under Virginia law."


Here is a link to the ruling.

More about the origin of the lawsuit here, from Variety; on the lower court ruling here.

December 13, 2018 | Permalink

Mantouvalou on Discipline and Dismissal for Social Media Activity @vmantouvalou

Virginia Mantouvalou, University College London, Faculty of Law, is publishing ‘I Lost My Job Over a Facebook Post – Was that Fair?’ Discipline and Dismissal for Social Media Activity in the International Journal of Comparative Labour Law and Industrial Relations (2019). Here is the abstract.

Is it fair to be dismissed for social media activity, and are there any limitations to the employer’s managerial prerogative? These are the questions that this article addresses by examining the compatibility of discipline or dismissal with human rights law, with a primary focus on United Kingdom (UK) and European human rights law. It argues that UK courts and tribunals erroneously accept the lawfulness of such dismissals most of the time. This is due both to weaknesses in the English law of unfair dismissal, and to courts’ and tribunals’ limited engagement with human rights at work. Technical aspects of social media usage, with which courts and tribunals are often unfamiliar, add a further layer of complexity. Two factors make dismissals for social media activity particularly challenging for courts: first, the fact that social media are online platforms that everyone can potentially access, and hence public rather than private space; second, that expression on social media, often spontaneous and thoughtless, is not viewed as a particularly valuable form of speech. The argument of the article is that both the right to private life and the right to free speech are implicated in dismissals for social media activity, and that they should be viewed as lawful in very limited occasions, for employers should not have the right to censor the moral, political and other views and preferences of their employees even if it causes business harm.

Download the article from SSRN at the link.

December 13, 2018 | Permalink

Gilden on Copyright's Market Gibberish @andrew_gilden

Andrew Gilden, Willamette University, is publishing Copyright's Market Gibberish in the Washington Law Review. Here is the abstract.

There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests — a practice it names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts. In a wide range of copyright cases, plaintiffs use economic and market-based theories to achieve goals that have little do with economic rights. If plaintiffs can plausibly tell a story of market harm, courts will often respond by manipulating economic rhetoric to provide the desired outcomes. For example, courts have protected celebrities’ rights to permanently suppress wedding photos and sex tapes, under the theory that they have the “right to change their mind” and someday reap profits from these materials. When courts engage in market gibberish, they obscure the diverse range of economic, emotional, and cultural interests at stake within copyright law. Instead of dogmatically hewing to economic incentives and market rhetoric, this Article argues that courts should engage in a more transparent examination of the interests actually at stake in copyright disputes. This Article makes three primary contributions. First, it provides the first comprehensive account of market gibberish and shows, through detailed analysis of case law, that litigants have long used market gibberish to advance their noneconomic goals. Second, it shows how the prevalence of market gibberish erodes copyright theory and practice. Rather than rigorously police market interests — as many scholars have proposed — this Article argues that courts should more explicitly engage with the diverse motivations for asserting copyright infringement. An interest-transparent approach would shed light on the complex normative work copyright is already doing and better distinguish between legitimate and abusive copyright assertions. Finally, this Article shows how market gibberish contributes to inequality under copyright law. A plaintiff’s ability to tell a story about potential markets is often limited to the most powerful rightsholders — famous artists, celebrities, and corporate creators — and not to the wide range of vulnerable and lesser-known individuals who are turning to copyright to stop the viral spread of their words, images, or voices.

Download the article from SSRN at the link.

December 13, 2018 | Permalink

Geiger and Izyumenko on Freedom of Expression as an External Limitation to Copyright Law in the EU @ElenaIzyumenko

Christophe Geiger and Elena Izyumenko, both of the Université de Strasbourg - CEIPI, are publishing Freedom of Expression as an External Limitation to Copyright Law in the EU: The Advocate General of the CJEU Shows the Way in the European Intellectual Property Review for 2019. Here is the abstract.

This article analyses the recent Opinion delivered by the Advocate General Szpunar of the CJEU in the “Afghanistan Papers” case. It highlights, in particular, four crucial points that stand out in the Opinion. First, the adoption of a fundamental right perspective when evaluating copyright regulation in general. Second, the need to ensure that copyright’s internal mechanisms designed to take into account the fundamental right to free expression (i.e., the idea/expression dichotomy, the criteria for protection such as the originality requirement and the exceptions and limitations) are interpreted in a manner that gives full effect to freedom of expression. The presence of such mechanisms should, third, by no means be understood as immunising copyright from any further freedom of expression scrutiny: according to the Advocate General, if on the contrary fundamental rights are not sufficiently taken into account by the existing copyright system, there are circumstances when the exclusive rights “must yield to an overriding interest relating to the implementation of a fundamental right or freedom” – an explicit admittance (for the first time at EU level) of the admissibility of an external limitation to copyright by freedom of expression. Finally, the Opinion highlights the unacceptability of misusing copyright for the purposes not corresponding to its rationales and its social function.

Download the article from SSRN at the link.

December 13, 2018 | Permalink

Wednesday, December 12, 2018

The Woman Who Published, and Signed, the Declaration of Independence

From Smithsonian Magazine, a piece about Mary Katherine Goddard, the newspaper publisher who printed and signed the Declaration of Independence in January 1777. She also served as postmaster of Baltimore, until the first Postmaster General appointed a man instead.

December 12, 2018 | Permalink

Tuesday, December 11, 2018

New From LSU Press: Eric P. Robinson, Reckless Disregard: St. Amant v. Thompson and the Transformation of Libel Law @lsupress

Newly published: Eric P. Robinson, University of South Carolina, has published Reckless Disregard: St. Amant v. Thompson and the Transformation of Libel Law (LSU Press, 2018). Here, from the publisher's website, is a description of the book's contents.

In the years following the landmark United States Supreme Court decision on libel law in New York Times v. Sullivan, the court ruled on a number of additional cases that continued to shape the standards of protected speech. As part of this key series of judgments, the justices explored the contours of the Sullivan ruling and established the definition of “reckless disregard” as it pertains to “actual malice” in the case of St. Amant v. Thompson. While an array of scholarly and legal literature examines Sullivan and some subsequent cases, the St. Amant case—once called “the most important of the recent Supreme Court libel decisions”—has not received the attention it warrants. Eric P. Robinson’s Reckless Disregard corrects this omission with a thorough analysis of the case and its ramifications. The history of St. Amant v. Thompson begins with the contentious 1962 U.S. Senate primary election in Louisiana, between incumbent Russell Long and businessman Philemon “Phil” A. St. Amant. The initial lawsuit stemmed from a televised campaign address in which St. Amant attempted to demonstrate Long’s alleged connections with organized crime and corrupt union officials. Although St. Amant’s claims had no effect on the outcome of the election, a little-noticed statement he made during the address—that money had “passed hands” between Baton Rouge Teamsters leader Ed Partin and East Baton Rouge Parish deputy sheriff Herman A. Thompson—led to a defamation lawsuit that ultimately passed through the legal system to the Supreme Court. A decisive step in the journey toward the robust protections that American courts provide to comments about public officials, public figures, and matters of public interest, St. Amant v. Thompson serves as a significant development in modern American defamation law. Robinson’s study deftly examines the background of the legal proceedings as well as their social and political context. His analysis of how the Supreme Court ruled in this case reveals the justices’ internal deliberations, shedding new light on a judgment that forever changed American libel law.
Reckless Disregard - Cover

December 11, 2018 | Permalink

Time Magazine's Person of the Year: The Journalists Who Seek Out, and Speak Truth

Time Magazine has named its person of the year: journalists, whom it has described as the guardians who speak out about truth, all around the world. Here's a link to the magazine's cover story on them, and on what Time identifies as the War on Truth. Time says in part,

This ought to be a time when democracy leaps forward, an informed citizenry being essential to self-government. Instead, it’s in retreat. Three decades after the Cold War defeat of a blunt and crude autocracy, a more clever brand takes nourishment from the murk that surrounds us. The old-school despot embraced censorship. The modern despot, finding that more difficult, foments mistrust of credible fact, thrives on the confusion loosed by social media and fashions the illusion of legitimacy from supplicants.

December 11, 2018 | Permalink

Monday, December 10, 2018

Shapira on How the Legal System Facilitates Investigative Journalism

Roy Shapira, Stigler Center, University of Chicago Booth School of Business; Interdisciplinary Center, is publishing Law As Source: How the Legal System Facilitates Investigative Journalism in volume 37 of the Yale Law & Policy Review. Here is the abstract.

Legal scholars have long recognized that the media plays a key role in assuring the proper functioning of political and business markets. Yet we have understudied the role of law in assuring effective media scrutiny. This Article develops a theory of law as source. The basic premise is that the law not only regulates what the media can or cannot say, but also facilitates media scrutiny by producing information. Specifically, law enforcement actions, such as litigation or regulatory investigations, extract information on the behavior of powerful players in business or government. Journalists can then translate the information into biting investigative reports and diffuse them widely, thereby shaping players’ reputations and norms. Levels of accountability in society are therefore not simply a function of the effectiveness of the courts as a watchdog or the media as a watchdog, but rather a function of the interactions between the two watchdogs. This Article approaches, from multiple angles, the questions of how and how much the media relies on legal sources. I analyze the content of projects that won investigative reporting prizes in the past two decades; interview forty veteran reporters; scour a reporters-only database of tip sheets and how-to manuals; go over syllabi of investigative reporting courses; and synthesize insights from the communication science and economics of information literatures. The triangulation of these different methods produces three sets of insights. First, this Article establishes that legal sources matter: in today’s information environment, court documents, depositions, and regulatory reports are often the most instrumental sources of accountability journalism. Second, the Article identifies how and why legal sources matter: they extract quality information on the (mis)behavior of powerful players in a credible, libel-proof manner. Finally, recognizing the function of law as source opens up space for rethinking important legal institutions according to how they contribute to information production. In the process, we get to reevaluate timely debates, such as the desirability of one-sided arbitration clauses, which have been at the center of recent Trump Administration orders and Supreme Court decisions.

Download the article from SSRN at the link.

December 10, 2018 | Permalink

Wednesday, December 5, 2018

ECHRts: Hungarian Statute Imposing Strict Liability For Linking To Defamatory Content Is Violation of ECHR, Article 10

New ruling from the European Court of Human Rights: a Hungarian law imposing strict liability for the dissemination of defamatory material violates Article 10 of the European Convention on Human Rights. From the press release concerning Magyar Jeti Zrt v Hungary (application no. 11257/16):


Relying on Article 10 (freedom of expression), the applicant company complained that by finding it liable for posting a hyperlink on its website which led to defamatory content the domestic courts had unduly restricted its rights....The Court highlighted the importance of hyperlinks for the smooth operation of the Internet by making information available through linking. When it came to reporting, hyperlinks were different from other traditional acts of publication as they did not present content or communicate it, but directed users to information available elsewhere or called readers’ attention to its existence. The content behind a hyperlink had also already been made available by the original publisher, providing unrestricted access to the public. Given such considerations the Court did not agree with the Hungarian courts’ approach of equating the posting of a hyperlink with the dissemination of defamatory information, which led to objective liability....Such objective liability could have negative consequences on the flow of information on the Internet by impelling authors and publishers to refrain altogether from hyperlinking to material whose content they could not control. That could directly or indirectly have a chilling effect on freedom of expression on the Internet.

Here is a link to the ruling.

December 5, 2018 | Permalink

Long on Copyright Reform in the 21st Century: Adding Privacy Considerations Into the Normative Mix

Doris Estelle Long, John Marshall Law School, is publishing Copyright Reform in the 21st Century: Adding Privacy Considerations into the Normative Mix in Making Copyright Work for the Asian Pacific: Juxtaposing Harmonisation with Flexibility (ANU Press 2018). Here is the abstract.

The new technology of the ‘Digital Age’ has led to the creation of potentially new copyrightable forms of works and new methods of distribution that do not automatically fit within existing paradigms based on a hard-goods world. As a result, copyright reform efforts are underway in jurisdictions as diverse as Australia, China, New Zealand, Singapore, South Korea, the European Union (EU), Hong Kong, Japan, Canada and the United States. To avoid the mistakes of the past, and create reforms whose effectiveness survives more than a few years, we must consider a broader array of normative inputs, including, critically the inter-relationship between copyright and personal and data privacy. In the 21st Century such privacy concerns are no longer adjuncts to issues of copyright protection but instead increasingly impact the scope and effectiveness of such protection. Using examples from the United States, Canada, the European Union and the Asia Pacific, I explore the impact of privacy considerations on such diverse issues as the author/subject dichotomy, fair use/fair dealing, digital enforcement mechanisms, including notice and takedown regimes, anticircumvention protections, database and other data collections, and distributional relief, including injunctions and suggest the shape that such reforms might take. Adding privacy concerns to copyright reformation considerations will not simplify the process. But the resulting normative framework could provide a copyright regime that not only provides a balance more in concert with the social justice and access to information/culture concerns but also remains viable regardless of what the next technological revolution may bring.

Download the chapter from SSRN at the link.

December 5, 2018 | Permalink

Goldman and Ziccarelli on Emojis and IP Law @ericgoldman @IPwithGZ

Eric Goldman and Gabriella Ziccarelli, both of Santa Clara University School of Law, have published Emojis and Intellectual Property Law. Here is the abstract.

Everyone loves emojis, and why not? They are a fun and an increasingly ubiquitous way for people to express themselves. But despite their superficial frivolity, emojis can raise potentially complex and serious legal issues, including novel and complicated questions about intellectual property (IP). This essay surveys how United States IP law protects emojis, and why such protection may be problematic.

Download the article from SSRN at the link.

December 5, 2018 | Permalink

Tuesday, December 4, 2018

Chmel, Savin, and Delli Carpini on Making Politics Attractive: Political Satire and Exposure To Political Information in New Media Environment in Russia @AnnenbergPenn

Kirill Chmel and Nikita Savin, both of the National Research University Higher School of Economics, and Michael X. Delli Carpini, Annenberg School for Communication, University of Pennsylvania, have published Making Politics Attractive: Political Satire and Exposure to Political Information in New Media Environment in Russia as Higher School of Economics Research Paper No. WP BRP 63/PS/2018. Here is the abstract.

There is an extensive body of research devoted to how political satire affects political knowledge and political behavior. Extant studies are focused on political satire in democratic countries and do not pay enough attention to authoritarian regimes. This study extends this research to non-democratic regimes, while also adding to it by exploring the extent to which the use of political satire encourages exposure to political information. We conduct an online experiment on the sample of Russian students. We borrow satirical pictures from Lentach – popular Russian social media public page, whose motto is “a propaganda of common sense” as opposed to biased political messages proliferated by government-controlled media outlets. Using both frequentist and Bayesian approaches, we found that access to political information containing satirical illustrating content increases attention to the information, relative to political news reports accompanied by standard news illustrations. The findings contribute to the literature on the political entertainment and exposure to political information, as well as to research on media under authoritarianism.

Download the article from SSRN at the link.

December 4, 2018 | Permalink

Gould on Whether the "Hate" In Hate Speech Is the "Hate" In Hate Crime @rrgould

Rebecca Gould, Islamic World & Comparative Literature, College of Arts & Law, University of Birmingham; Harvard University - Davis Center for Russian and Eurasian Studies is publishing Is the ‘Hate’ in Hate Speech the ‘Hate’ in Hate Crime? Waldron and Dworkin on Political Legitimacy in Jurisprudence. Here is the abstract.

Among the most persuasive arguments against hate speech bans was made by Ronald Dworkin, who warned of the threat to political legitimacy posed by laws that deny those subject to them adequate opportunity for dissent. In his influential defence of hate speech bans, Jeremy Waldron addresses these objections. Dworkin’s concern with political legitimacy is misplaced, he argues, given the provision speech bans make for substituting permissible modes of expression for impermissible ones. I argue that this defence of speech bans misidentifies the “hate” in hate speech with the “hate” in hate crime. In contesting Dworkin, Waldron fails to contend with the necessarily entangled criminalisation of manner and viewpoint entailed in hate speech bans. By failing to grapple with the way in which every linguistic sign is constituted by both manner and viewpoint, Waldron sidesteps the ways in which hate speech bans undermine political legitimacy within liberal democracies.

Download the article from SSRN at the link.

December 4, 2018 | Permalink

Monday, December 3, 2018

Hudson on Justice Kennedy and the First Amendment @BelmontLaw

David L. Hudson, Jr., has published Justice Kennedy and the First Amendment at 9 Houston Law Review Off the Record 49 (2019). Here is the abstract.

This essay reviews some of Justice Anthony Kennedy’s most significant contributions to First Amendment jurisprudence. These include his calls for absolute protection for pure political speech, his strong protection for commercial speech, his distaste for campaign finance reform laws that censored speech, his general concern for the silencing of sexual expression, his coercion test in Establishment Clause cases, and his significant failure in the public-employee free-speech decision Garcetti v. Ceballos.

Download the essay from SSRN at the link.

December 3, 2018 | Permalink