Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, February 27, 2019

Jorge Ramos on Nicolas Maduro

Jorge Ramos on Nicolas Maduro, here, from the New York Times. Mr. Maduro detained Mr. Ramos and his crew for several hours Monday evening because he did not like their coverage of him, but eventually released them, after seizing their equipment and tapes.  More here from the Washington Post. 

February 27, 2019 | Permalink

Tuesday, February 26, 2019

Chatterjee on IP, Independent Creation, and the Lockean Commons @nirrvala

Mala Chatterjee, NYU School of Law; Stanford University; NYU Department of Philosophy, has published Intellectual Property, Independent Creation, and the Lockean Commons. Here is the abstract.

Copyright and patent law – which grant exclusive rights in two very different kinds of subject matter, but are nonetheless lumped together as “intellectual property” – are predominantly regarded by U.S. scholars as having the same theoretical underpinnings. This manifests in doctrine, as courts have ruled in a number of ways aiming to unify the two areas of law. One example of this tendency to theoretically unify copyright and patent law is Seana Shiffrin’s paper “Lockean Arguments for Private Intellectual Property”, which argues against Lockean understandings of intellectual property. This paper argues that Shiffrin’s challenge is successful in the context of patent law, but not in the context of copyright, due to significant doctrinal differences between the two. The paper then outlines normative questions raised by these differences, as well as potential doctrinal implications that would result if copyright and patent law are shown to have distinct normative foundations.

Download the article from SSRN at the link.

February 26, 2019 | Permalink

Cheng Lim Saw on Implications of Reposting Copyright Material Online and Svensson Distinguished in CJEU Judgment Land Nordrhein-Westfalen v. Dirk Renckhoff

Cheng Lim Saw, Singapore Management University School of Law, ha spublished Implications of Reposting Copyright Material Online and Svensson Distinguished in CJEU Judgment: Land Nordrhein-Westfalen v Dirk Renckhoff at 30 Singapore Academy of Law Journal 1126 (2018). Here is the abstract.

This comment considers the CJEU’s recent decision in Land Nordrhein-Westfalen v Dirk Renckhoff (Case C-161/17) EU:C:2018:634, concerning the legality of reposting copyright-protected material on the Internet. Notably, the earlier decision of the CJEU in Svensson – which was a case on hyperlinking and although cited fairly extensively in argument – was carefully distinguished on the facts.

Download the article from SSRN at the link.

February 26, 2019 | Permalink

Blitz on Lies, Line Drawing, and (Deep) Fake News

Marc Jonathan Blitz, Oklahoma City University, has published Lies, Line Drawing and (Deep) Fake News at 71 Okla. L. Rev. 59 (2018). Here is the abstract.

Just over twenty years ago, in 1998, science fiction writer and technologist David Brin warned, “One of the scariest predictions now circulating is that we are about to leave the era of photographic proof. . . . We are fast reaching the point where expertly controlled computers can adjust an image, pixel by microscopic pixel, and not leave a clue behind.” (David Brin, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? 28 (1998)). Now, many articles are reporting that a similar technological transformation is occurring in the realm of audio- and video recording. Legislators and legal scholars have begun asking what laws or technological measures can be used to protect the public from being deceived by “deep fake” videos. This symposium essay considers how First Amendment free speech protection might apply to the creation of such videos – and how such protection might differ from the protection that the Supreme Court found, in 2012, applies to false statements of fact. First, it analyzes how courts have generally adhered to a well-established dichotomy in First Amendment treatment of false claims: In the commercial marketplace, government often stands ready to intervene to protect us against being sold forgeries or other fake goods. The same is true in certain situations where security is at stake, for example, where a fake ID might give a person unwarranted access to an airplane or a building off-limits to the general public. Matters are very different, by contrast in the marketplace of ideas. Here, individuals are largely on their own. Government may not constitutionally exile certain ideas from the free trade in ideas, as it can ban harmful goods or services from the realm of buying and selling. In the realm of free expression, wrote Justice Jackson, “every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Thomas v. Collins, 323 U.S. 516 (1945) (Jackson, J concurring). The justices in the 2012 case, United States v. Alvarez, disagreed about how to classify verifiably false autobiographical statement in this dichotomy (and thus disagreed about how to analyze Alvarez’s false claim to have won a Congressional medal of honor). But they largely agreed that false statements on matters of public concern should generally be treated as contributions to the marketplace of ideas, and receive staunch First Amendment protection – unless they constitute defamation, fraud, or some other legally-cognizable harm. Having examined the Alvarez decision and certain difficulties that confront it, the essay then asks whether this First Amendment framework requires modification when the vehicle for deception is not merely a falsity but a forgery – that is, where it is not merely the content of the speech that is intended to deceive, but also its purported source or vehicle. A deep fake video, for example, does not simply present a false description of an event. It clothes such falsity in the authority of video evidence. The essay considers some of the reasons why the First Amendment should perhaps give government greater leeway to regulate fake video- or audio-recording than verbal lies - why, for example, a false statement about war-time actions might be protected speech, whereas a fake video of an event in that war allowing people to see with their own eyes, events which never occurred - might raise more significant concerns. Or why the false content in a fake news article may be protected speech but this may not be true of the false guise it wears as a New York Times, Chicago Tribune, or Washington Post article when neither publication played any role in it. The essay also briefly considers some of the difficulties that courts would face in attempting to differentiate in this way between falsity and forgery, and providing different First Amendment rules to each category of deception.

Download the article from SSRN at the link.

February 26, 2019 | Permalink

Sunday, February 24, 2019

New from OUP: Mary Kate McGowan, Just Words: On Speech and Hidden Harm (2019) @OxUniPress

New from Oxford University Press: Mary Kate McGowan, Professor of Philosophy, Wellesley College, has published Just Words: On Speech and Hidden Harm (2019). Here is a description of the book's contents.

We all know that speech can be harmful. But what are the harms and how exactly does the speech in question brings those harms about? Mary Kate McGowan identifies a previously overlooked mechanism by which speech constitutes, rather than merely causes, harm. She argues that speech constitutes harm when it enacts a norm that prescribes that harm. McGowan illustrates this theory by considering many categories of speech including sexist remarks, racist hate speech, pornography, verbal triggers for stereotype threat, micro-aggressions, political dog whistles, slam poetry, and even the hanging of posters. Just Words explores a variety of harms - such as oppression, subordination, discrimination, domination, harassment, and marginalization - and ways in which these harms can be remedied.

February 24, 2019 | Permalink

Thursday, February 21, 2019

The Conversation On CNN's Hire of Sarah Isgur Flores @ConversationUS

Sarah Isgur Flores moves to CNN. The Conversation examines similar media hires and analyzes this one. 

February 21, 2019 | Permalink

Sunday, February 17, 2019

"Magic Hour," Series Featuring Young Journalist, Now Filming

Currently filming in Vancouver, BC: Magic Hour (Apple/Paramount), a ten-episode series based on the life and stories of young journalist Hilde Lysiak. More here from Deadline Hollywood. and here, from Inside Vancouver.

February 17, 2019 | Permalink

Friday, February 15, 2019

Center For Journalism Ethics, UW-Madison, Announces Finalists For Anthony Shadid Award @UWJournEthics

The Center for Journalism Ethics, University of Wisconsin, Madison, has announced the five finalists for the 2019 Anthony Shadid Award in Journalism Ethics. 

 

 

Here from the Center's announcement, is the list. Read more about the award here.

Julie K. Brown and Emily Michot, Miami Herald. “Perversion of Justice” was a three-part series examining how a wealthy hedge fund manager – accused of molesting and sexually assaulting hundreds of underage girls – was able to manipulate the U.S. justice system to help cover up the scope of his crimes and keep his victims in the dark. According to the nomination, the reporters had to earn the trust of victims who had been traumatized not only by Jeffrey Epstein, but also by the justice system and the news media.
Garance Burke and Martha Mendoza, Associated Press. “The Innocents: How U.S. immigration policy punishes migrant children” was a year-long investigation into the Trump administration’s family separation policy and included stories on tender age shelters, alleged abuse in shelters, the abuse of a Honduran teen, adoption of migrant children, the scope of the migrant kids program, the billion-dollar industry of detaining immigrant children, and the waiving of FBI checks for staff at a teen migrant camp. According to the nomination, this AP team prioritized the welfare of the children they interviewed while also “[holding] those in power accountable for immigration policies that are punishing the most vulnerable.”
Hannah Dreier, ProPublica. “A Betrayal” tells the story of a teenager and MS-13 gang member who became a government informant, only to face death threats and deportation after federal agents reneged on a promise to protect him. According to the nominating letter, Dreier “balanced the imperative to expose bad policies and abuses of power against the danger to a teenager’s life.”
David Jackson, Jennifer Smith Richards, Gary Marx, Juan Perez, Jr., Chicago Tribune. “Betrayed” is an investigative series that exposed Chicago schools’ failure to protect students from sexual abuse and assault. According to the nominating letter, Jackson and team “applied journalistic standards honed over years of investigating sexual violence against vulnerable people” to “for the first time [quantify] the staggering prevalence of sexual violence against students in a large U.S. school district.”
Maggie Michael, Nariman El-Mofty, Maad al-Zikry, Associated Press. Throughout 2018, these reporters investigated the atrocities occurring during Yemen’s war, publishing “Yemeni prisoners say Emirati officers sexually torture them,” “Ex-inmates: Torture rife in prisons run by Yemen rebels,” “Children as young as 10 fight, kill and die in Yemen’s war” and “AP investigation: Food aid stolen as Yemen starves.” According to the nomination letter, the AP reporters “braved dangers and faced tough ethical questions as they fought to tell stories that the world heard from no other source.”

February 15, 2019 | Permalink

Ben-Natan on The Legal Challenge to the Playboy Challenge @TelAvivUni

Smadar Ben-Natan, Buchmann Faculty of Law; UC Berkeley Center for the Study of Law and Society, UC Berkeley Center for Middle Eastern Studies, has published Controversy and Consensus, Pornography and Hate Speech: The Legal Challenge to the Playboy Channel in Prostitution, Pornography and Trafficking in Women: Israel's Blood Money 195 (Esther Hertzog and Erella Shadmi, eds., Routledge, 2019). Here is the abstract.

In 2004, the Israeli Supreme Court affirmed the legality of Playboy Channel broadcasts in Israel, after a challenge presented by a coalition of twelve feminist civil society organizations. The Court made rhetorical use of comparative law to legitimize its decision, by creating a false impression of international consensus over pornography and freedom of speech. A closer look into the American and Canadian doctrines on freedom of speech on which the court relies as identical, reveals that they are fundamentally different in their relation to pornography as well as to hate speech, it’s closest analogue. The article builds on similarities between Israel and Canada in banning hate speech, to suggest the analogy to hate speech as useful in the pornography debate. Further, the appearance of a global consensus is rhetorically used by the court to minimize and trivialize the deep controversy over pornography in Israel.

Download the essay from SSRN at the link.

February 15, 2019 | Permalink

Tuesday, February 12, 2019

11th Circuit Affirms Lower Court Order Unsealing Grand Jury Transcripts In Moore's Ford Lynching Case

The 11th Circuit has affirmed a lower court ruling unsealing the grand jury transcripts in the Moore's Ford lynching case. A mob murdered two African-American couples at Moore's Ford, Walton County, Georgia, 1946. 

In 2017, the Georgia Bureau of Investigation was close to shutting down its 17-year investigation without making arrests, although it opened its files on the case to the Atlanta Journal-Constitution. Historian Anthony Pitch, the author of a book about the murders (The Last Lynching, 2016), also renewed his request that the grand jury transcripts be unsealed. The district court so ordered and the government appealed. In its ruling the appellate court examined the government's claim of abuse of discretion by the lower court, and said,

 

 

Historical importance is objective. It must be distinguished from “journalistic intrigue, public curiosity, or even a subjective importance to family and friends.” Craig, 131 F.3d at 105 n.8. The Moore’s Ford Lynching is clearly an event of exceptional historical significance. Compared to the journalist or the family member of a victim that seeks access to the details of a salacious unsolved crime, the Moore’s Ford Lynching is historically significant because it is closely tied to the national civil rights movement. Many consider it to be the last mass lynching in American history. There has been, and continues to be, national media attention and widespread public interest in the murders. According to Pitch, the Moore’s Ford Lynching is credited as a catalyst to the President’s Committee on Civil Rights, which President Harry Truman created by executive order the same week the Moore’s Ford grand jury was convened. See Exec. Order No. 9808, 11 Fed. Reg. 14153 (Dec. 5, 1946). It would be difficult to deny—and the government does not attempt to do so on appeal—that the Moore’s Ford Lynching is, objectively, an exceptionally significant event in American history. Despite considerable public interest, the details are sparse. Even with a crowd of witnesses, no one was prosecuted and no public proceedings were held. For this reason, Pitch sought disclosure of the entire transcript from the grand jury proceedings. As the district court did here, courts should give any party opposing disclosure the opportunity to object to specific portions of the records. The district court should engage in the same balancing test to determine whether, and how much, those portions should be redacted or omitted. See Douglas Oil, 441 U.S. at 223, 99 S. Ct. at 1675 (“And if disclosure is ordered, the court may include protective limitations on the use of the disclosed material . . . .”); Hastings, 735 F.2d at 1274–75 (approving the district court’s “protective conditions”). The interest in continued secrecy is also undercut if details in the records have been publicized. See Craig, 131 F.3d at 107; cf. In re North, 16 F.3d 1234, 1244–45 (D.C. Cir. 1994) (noting that widespread media release might undercut interest in secrecy to point where Rule 6(e) would not prohibit disclosure).

 

 

The court determined that this event continues to be of historic importance to the public because of its ties to the civil rights movement and that public interest in the movement continues. In combination with other factors, including the lengthy passage of time since the event, the importance of the event outweighed the government's interest in keeping the materials sealed.

 

Link to the ruling here.

February 12, 2019 | Permalink

Monday, February 11, 2019

De Gregorio on Secret Filming and the Right To Inform Under A European Constitutional Perspective @unimib

Giovanni De Gregorio, University of Milano-Bicocca, has published Secret Filming and the Right to Inform under an European Constitutional Perspective. The Case of Alpha Doryforiki v. Greece at 2 Rivista di diritto dei media 410 (2018). Here is the abstract.

In the case in question, the European Court of Human Rights dealt with the boundaries of the right to inform in relation to use of secret tools of recording by journalists to conduct interviews on matters of public interest. In particular, the facts involved three videos secretly filmed involving a Greek politician. These videos were broadcasted on TV by the applicant which, then, was sanctioned by the Greek authorities. Regarding the first video, the Court ruled that the Greek Courts had violated the applicant, as broadcaster, freedom of expression by imposing sanctions for having secretly filmed video of a politician in a gambling arcade. However, the Court held that there had been no violation in respect of the two other videos filmed secretly on private premises. In its reasoning, the ECtHR observed that the Greek authorities had not considered that the first video was not recorded on private premises and, consequently, the interference with the official’s privacy rights under art. 8 ECHR was, therefore, significantly less serious than the interference related to the other two videos where the Greek courts ruled in favour of the right to privacy of the politician, taking into account, in particular, the modalities exploited to obtain information together with the journalistic duties and obligations of the broadcaster.

Download the article from SSRN at the link.

February 11, 2019 | Permalink

Friday, February 8, 2019

District Court Finds Massachusetts Statute Prohibiting Secret Recording of Government Officials Violates First Amendment @M_Lambert4612

A federal district court has ruled that the Massachusetts statute criminalizing secret recordings of non-consenting persons as it applies to public officials violates the First Amendment. "Consistent with the language of Glik, the Court holds that Section 99 may not constitutionally prohibit the secret audio
recording of government officials, including law enforcement officials, performing their duties in public spaces, subject to reasonable time, manner, and place restrictions. " Here's a link to the ruling  (Martin and Perez v. Gross).

Here's discussion of the ruling, from Michael Lambert of Prince, Lobel.

February 8, 2019 | Permalink

Thursday, February 7, 2019

Monti on Automated Journalism and Freedom of Information

Matteo Monti, Scuola Superiore Sant'Anna di Pisa, is publishing Automated Journalism and Freedom of Information: Ethical and Juridical Problems Related to AI in the Press Field in volume 1, issue 1 of Opinio Juris in Comparatione (2019). Here is the abstract.

Journalism and the Press have always been deeply influenced by technological changes, and so they are in the digital world: from the competition of new media and the challenges of the Web 2.0 to the creation of a new way to produce news, i.e. automated journalism. Between the different notions of the use of AI in the Press field (automated journalism, robot journalism, News-Writing Bots, algorithmic journalism) in this paper the wording “automated journalism” is preferred as long as it seems to describe in a better way the practice of this type of journalism and it seems more used by the scholars who have studied this topic. Automated journalism is the use of AI, i.e. software or algorithms, in order to automatically generate news stories without any contribution of human beings, apart from that of programmers who (eventually) have developed the algorithm. This paper aims to analyse the ethical and juridical problems of automated journalism, in particular, looking at the freedom of information and focusing on the issue of liability and responsibility. From a legal point of view, the analysis shall embrace and share the European concept of the freedom of information and media regulation, focusing in particular on the Italian legal system. Indeed in the range of European legal systems, the Italian system has more broadly developed the idea of freedom of information, and it has multiple approaches to the topic, which are partially explored here. The first paragraph of the paper shall explore the field of the media outputs in which automated journalism – as currently developed – could produce innovations and could be implemented. The utilization of the Italian model serves to understand how the pieces of automated journalism could be framed from a legal point of view. The second paragraph shall analyse the legal and ethical problem of automated journalism by looking at the problems of liability and data use. As a consequence, a first section shall be dedicated to the issue of liability and another one to that of data utilization. In the final remarks, some solutions and guidelines shall be proposed looking at the problems highlighted in the paper.

Download the article from SSRN at the link.

February 7, 2019 | Permalink

Tuesday, February 5, 2019

Call For Nominations: Harry W. Stonecipher Award for Distinguished Research on Media Law and Policy

Call For Nominations: Harry W. Stonecipher Award
for Distinguished Research on Media Law and Policy

 

 

The Law and Policy Division of the Association for Education in Journalism and Mass Communication (AEJMC) seeks nominations for the 2018 Harry W. Stonecipher Award for Distinguished Research on Media Law and Policy.

 

The award honors the legacy of Harry W. Stonecipher, who died in 2004. Stonecipher was an acclaimed and influential First Amendment educator. He nurtured a number of distinguished media law scholars during his 15-year career at Southern Illinois University, Carbondale, beginning in 1969.

 

The Stonecipher Award for Distinguished Research on Media Law and Policy is open to all journalism, First Amendment and communication scholars within and outside AEJMC. The award will be bestowed on research that most broadly covers freedom of expression as a whole, not just journalism. 

 

The award is not limited to research that centers on media-specific issues; it can include First Amendment speech and press issues more broadly. The successful nomination also might be global in scope, rather than U.S.-centric, given that media law and policy as a research topic is inextricably intertwined with the rest of the world in the 21st century.

 

Preference will be given to research with a strong theoretical component that demonstrates the potential to have a lasting influence on freedom of expression scholarship. All methodologies — empirical, qualitative, historical, etc.  — are welcome. Nominations may be for monographs, peer-reviewed journal articles, law review articles or book chapters (but not entire books). Self-nominations are welcome, one per author.

 

In order to be considered for the award, the research must have been published between Jan. 1, 2018, and Dec. 31, 2018

 

Nominations should be sent to Dean Smith at High Point University via e-mail — dsmith1@highpoint.edu — by Feb. 28. Please include STONECIPHER in the subject line. The winner will be announced ahead of the AEJMC’s national convention in August in Toronto, and the award will be presented there.

 

February 5, 2019 | Permalink

Monday, February 4, 2019

Healy on Learned Hand and the Making of a Free Speech Dissent @SetonHallLaw

Thomas Healy, Seton Hall University School of Law, has published Anxiety and Influence: Learned Hand and the Making of a Free Speech Dissent at 50 Arizona State Law Journal 803 (2019). Here is the abstract.

In this essay marking the centenary of Learned Hand's opinion in the Masses case, I attempt to identify the influence Hand had on the free speech views of Justice Oliver Wendell Holmes and how that influence manifested itself in Holmes's 1919 dissent in Abrams v. United States. I also attempt to show that, in spite of that influence, Holmes's theoretical justification ultimately differed from the one Hand articulated in Masses.

Download the essay from SSRN at the link.

February 4, 2019 | Permalink

Sunday, February 3, 2019

What's Next For the Newseum?

The Newseum opened its doors in 2008. Now it's selling its building to Johns Hopkins. It's not clear what happens next to this idea devoted to journalism and the history of the press.  The Washington Post discusses options here.

February 3, 2019 | Permalink