Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 20, 2019

Campbell and Exner on A Calgary Chiropodist Who Complained of Libel, 1916 @TheHeidikins

Lyndsay Campbell and Heidi J. T. Exner, both of the University of Calgary, have published An Elusive Remedy: A Calgary Chiropodist Complains of Libel, 1916 at 6 Law & History 115 (2019). Here is the abstract.

The decision of a chiropodist - a man who called himself 'Doctor' and developed and sold foot products - to prosecute a small Calgary newspaper for criminal libel in the summer of 1916 touched off a series of events that ultimately resulted in the chiropodist's convictions for holding himself out as a doctor and practising medicine without a licence. The proceedings against the editor were stayed. These legal proceedings demonstrate the mutually reinforcing commitments of doctors and lawyers to protecting the professionalisation of medicine, and especially orthopaedic surgery, against the threat of interlopers in early twentieth-century Canada.

Download the article from SSRN at the link.

June 20, 2019 | Permalink

Tuesday, June 18, 2019

Wisconsin Judge Issues Summary Judgment For Plaintiff In Defamation Case Against Authors Who Denied Truth Of Sandy Hook Killings

Dane County (Wisconsin) Circuit Court Judge Frank Remington issued a summary judgment in the defamation case that Lenny Pozner, father of 6 year old Noah Pozner, brought against James Fetzer and Mike Palacek, authors of Nobody Dies at Sandy Hook. Mr. Pozner sued the two over their claims that he was a crisis actor, that Noah never existed, and that the murders at Sandy Hook never happened. The publisher of the book has pulled it from sale, saying that he believes Mr. Pozner is "telling the truth about the death of his son."

Other parents of children killed at Sandy Hook in 2012 have also brought suits against those who claim that the killings by Adam Lanza are a hoax, including Robbie Parker, whose daughter died that day, and who is suing Infowars host Alex Jones.  Mr. Jones currently faces at least two lawsuits, one in Texas and one in Connecticut, over his statements that the shootings never occurred, although he now has retracted those statements. In the past few days, lawyers for the plaintiffs in one of the suits said that Mr. Jones's lawyers had turned over materials that include child pornography. They have alerted the FBI. More here from CNBC.

June 18, 2019 | Permalink

Monday, June 17, 2019

SCT: Private Entities Designated By Local Government To Operate Public Access Channels Are Not State Actors

The Supreme Court, voting 5-4, has reversed the Second Circuit in Manhattan Community Access Corp., v. Halleck.   In the case, petitioner Manhattan Neighborhood Network (MNN) argued that it is not a state actor and is not required to allow the producers of a film critical of it to gain access to the public access channels it carries, even though New York City designated it as the operator of public access channels on the Time Warner cable system that serves Manhattan. 

Justice Kavanaugh, for the majority (Kavanaugh, Roberts, Thomas, Alito, and Gorsuch) wrote that MNN is not a state actor. "[I]s operation of public access channels on a cable system a traditional, exclusive public function? If so then the First Amendment would restrict MNN's exercise of editorial discretion over the speech and speakers on the public access channels....[W]e conclude that operation of public access channels on a cable system is not a traditional, exclusive public fuction. Moreover, a private entity such aws MNN who opens its property for speech by others is not transformed by that fact alone into a state actor." He continues, "[M]erely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether."


Justice Sotomayor dissented, writing in part, "The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administration of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation."





June 17, 2019 | Permalink

Roberts on False Influencing @lexlanham

Alexandra J. Roberts, University of New Hampshire School of Law, has published False Influencing. Here is the abstract.

Social media influencers and the brands that engage them are bound to comply with the portions of the FTC Act that regulate advertising and endorsement. But many don’t. While the FTC has promulgated guidelines, sent warning letters to repeat offenders, and occasionally brought actions against influencers and brands whose practices run afoul of the guidelines, it tends to apply most of its resources to issues it considers more pressing than regulating influencer marketing claims. Private parties, meanwhile, lack standing to challenge competitors' practices based on violations of the FTC Act. The Lanham Act provides companies with a false advertising cause of action, but so far few have called upon it in an attempt to enjoin false or misleading claims their competitors make via influencer marketing. Can an influencer’s failure to disclose that a post is a paid endorsement — a clear violation of FTC Guidelines — constitute a misleading statement under §43(a)(1)(B)? If an influencer’s testimonial about a product or about her experience with it is untrue, might that falsehood be material to consumers’ purchasing decisions, and thus actionable? This article will explore the potential for private actors to use the Lanham Act to challenge competitors’ “false influencing” — disseminating false or misleading advertising messages via influencer marketing — as a means to increase consistency in how ads are regulated across platforms and types of media.

The text is not available from SSRN.

June 17, 2019 | Permalink

Friday, June 14, 2019

Ayoubi on Deciphering the "Right to Read" Under International Human Rights Law @Lida_Ayoubi

LIda Ayoubi, Auckland University of Technology, Law School, is publishing Deciphering the 'Right to Read' under International Human Rights Law: A Normative Framework for Equal Access in volume 36 of the Wisconsin International Law Journal (2019). Here is the abstract.

While much has been written about the Marrakesh Treaty, its legal standing, and its content, a detailed analysis of the human rights principles that it encompasses is not available. Furthermore, even though the Marrakesh Treaty was adopted nearly five years ago, the pace of its ratification remains low. Therefore, this paper analyzes the normative and legal foundations for the validity of the claim that lack of satisfactory access to copyrighted material is discriminatory and a violation of the visually impaired persons’ human rights. This analysis highlights the need for the implementation of the Marrakesh Treaty as a key step towards provision and facilitation of better access to copyrighted works for the print-disabled.

Download the article from SSRN at the link.

June 14, 2019 | Permalink

Wednesday, June 12, 2019

Zeno-Zencovich on What We Mean by "Media" Today @CAPBooks

Vincenzo Zeno-Zencovich, University of Rome III, Department of Law, is publishing What Do We Mean By 'Media' Today? in R.L.Weaver, A. Koltay, M.D.Cole, S.I. Friedland (eds.), Free Speech and Media Law in the 21st Century, Carolina Academic Press 2019 (Forthcoming). Here is the abstract.

The article aims at pointing out that the traditional notion of media is no longer functional to the contemporary information and communication technology environment and requires a different approach in order to avoid applying obsolete rules to new means.

Download the essay from SSRN at the link.

June 12, 2019 | Permalink

Tuesday, June 11, 2019

Volokh on Anti-Libel Injunctions and the Criminal Libel Connection @VolokhC

Eugene Volokh, UCLA School of Law, is publishing Anti-Libel Injunctions and the Criminal Libel Connection in the University of Pennsylvania Law Review. Here is the abstract.

An injunction against libel, which carries the threat of prosecution for criminal contempt, is like a miniature criminal libel law -- just for a particular defendant, and just for statements about a particular plaintiff. That is its virtue. That is its danger. And that is the key to identifying how both the First Amendment and equitable principles should constrain such injunctions. Properly crafted anti-libel injunctions, I argue, are constitutional. But most existing injunctions are not properly crafted, and thus threaten criminal contempt punishment for libel without offering the protections that even criminal libel provides -- not just trial by jury, but also proof beyond a reasonable doubt and the availability of a criminal defense lawyer. Courts should therefore change the way they word and implement these injunctions; and courts should also be attentive to how the injunctions interact with state executive and legislative decisions, even apart from First Amendment concerns.

Download the article from SSRN at the link.

June 11, 2019 | Permalink

Jim Acosta on His New Book "The Enemy of the People" and Trump's Rhetoric @Acosta

Jim Acosta on how Trump's "fake news" charges have gotten out of hand. He discusses Trump's rhetoric here in which he also discusses the genesis of his new book The Enemy of the People. Mr. Acosta says in part,  "But what may have begun as something of a reality TV-style parlor trick has mutated into a full-blown assault on the American free press, one that the President apparently can no longer control."

June 11, 2019 | Permalink

Monday, June 10, 2019

Governor Ivey (Alabama) Signs HB 498, To Protect Free Speech on College Campuses

The Governor of Alabama has signed HB498 into law. HB498 "would require state two-year and four-year colleges and universities to protect and uphold free speech rights for students and faculty, and would provide a cause of action for violations." (synopsis).

Read the text of the bill here.

More here from The Hill. 

June 10, 2019 | Permalink

Thursday, June 6, 2019

Minow on The Changing Ecosystem of News and Challenges for Freedom of the Press @Harvard_Law

Martha Minow, Harvard Law School, is publishing The Changing Ecosystem of News and Challenges for Freedom of the Press in the Loyola (New Orleans) Law Review. Here is the abstract.

The ecosystem of news has changed beyond the imagination of anyone living when the First Amendment was drafted. Changes in the private industry of the press leave some communities with no local news coverage.A majority of people in the United States now receive news selected for them by a computer-based mathematical formula derived from their past interests, producing echo chambers with few opportunities to learn, understand, or believe what others are hearing as news. Traditional news media—now called “legacy media”—is shrinking, cutting staff, and relying on freelancers. Meanwhile, digital platforms surge in usage, profits, and revenues from advertising, which are used to stimulate engagement and collect data to further target users. This contributes to a world in which fewer than one-third of those surveyed trust mass media to report the news fully and accurately—the lowest number since such surveys began. The recent indictment of thirteen Russians for disrupting the 2016 United States presidential election by spreading divisive and false messages through Facebook, Google, and Twitter underscores what Alexander Meiklejohn put so well: reliable press expression is fundamental to democratic self-governance. What can be done when transformations in technology, economics, and communications jeopardize the production and distribution of, and trust in, news that is essential in a democratic society?

Download the article from SSRN at the link.

June 6, 2019 | Permalink

Monday, June 3, 2019

Trevor Timm: Journalism Is Under Assault

From Medium: Trevor Timm writes about the charges against Julian Assange and the police raid on journalist Bryan Carmody's home, arguing that we are now seeing serious attacks on freedom of the press.

June 3, 2019 | Permalink