Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 26, 2019

Aswad on Protecting Freedom of Expression @EvelynAswad

Evelyn Aswad, University of Oklahoma College of Law, is publishing To Protect Freedom of Expression, Why Not Steal Victory from the Jaws of Defeat? in volume 77 of the Washington & Lee Law Review (2020). Here is the abstract.

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation. Those concerns were linked to a recent scholarly call for updates to the United Nations’ international legal regime regarding freedom of expression, particularly with respect to the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Racial Discrimination. This Article examines the scholarly call’s analysis to assess whether its conclusions are correct, which would make this body of law less useful for platforms to adopt in content moderation. This Article finds that the state of international law on freedom of expression is more protective of speech (and more coherent) than the scholars assessed and proposes ways to achieve their laudable goal of promoting broad protections for freedom of expression in international law. The Article concludes that the existing international legal regime on freedom of expression remains a useful resource for content moderation by global platforms.

Download the article from SSRN at the link.

November 26, 2019 | Permalink

Monday, November 25, 2019

Sedler on Speech: The Constitution, Impeachment, and the Trump Presidency @_WayneLaw

Robert A. Sedler, Wayne State University Law School, has published Speech: The Constitution, Impeachment, and the Trump Presidency. Here is the abstract.

Our Eighteenth Century Constitution was supposed to operate without political parties, but today we have a very strong two-party political system and a Nation that is polarized along partisan political lines. Everything that happens with respect to the current impeachment proceedings against President Trump reflects the interaction between our eighteenth century Constitution and the two-party political system. Moreover, the Supreme Court has held that all questions relating to impeachment constitute a textually demonstrable constitutional commitment to the Congress, so that the courts are not involved in the impeachment process in any way whatsoever. In this speech, I will briefly review the two-party political system and the enormous powers of the American President. I will then explain the constitutional process of impeachment and the respective roles of the House of Representatives and the Senate in that process. I will follow that with a review of the Johnson, Clinton and Nixon impeachments and discuss the operation of partisan politics in those impeachments. I will conclude with a discussion of the current impeachment proceedings involving President Trump.

Download the essay from SSRN at the link.

November 25, 2019 | Permalink

Thursday, November 21, 2019

Reddit Warms Subreddit Forum About Language Used Regarding Whistleblower

CNN reports that Reddit has "warned" those who use the Reddit "The Donald" subreddit forum not to harass or try to "out" the whistleblower who filed a formal complaint that has led to the impeachment inquiry currently going on in the U. S. House of Representatives. Here is some of the language warning the forum's moderators about posts in the forum. 


Dear Mods,

We want to let you know that your community has been quarantined, as outlined in Reddit’s Content Policy.

The reason for the quarantine is that over the last few months we have observed repeated rule-breaking behavior in your community and an over-reliance on Reddit admins to manage users and remove posts that violate our content policy, including content that encourages or incites violence. Most recently, we have observed this behavior in the form of encouragement of violence towards police officers and public officials in Oregon. This is not only in violation of our site-wide policies, but also your own community rules (rule #9). You can find violating content that we removed in your mod logs.


Next steps:

You unambiguously communicate to your subscribers that violent content is unacceptable.

You communicate to your users that reporting is a core function of Reddit and is essential to maintaining the health and viability of the community.

Following that, we will continue to monitor your community, specifically looking at report rate and for patterns of rule-violating content.

Undertake any other actions you determine to reduce the amount of rule-violating content.

Following these changes, we will consider an appeal to lift the quarantine, in line with the process outlined here.



November 21, 2019 | Permalink

Friday, November 15, 2019

Wilson on The Digital Ethnography of Law: Studying Online Hate Speech Online and Offline @richardawilson7 @UConnLaw

Richard Ashby Wilson, University of Connecticut School of Law, has published The Digital Ethnography of Law: Studying Online Hate Speech Online and Offline at 3 Journal of Legal Anthropology 1 (October 2019). Here is the abstract.

The ethnography of social media is still a developing field, and the anthropology of online legal topics is even more incipient. This article charts a digital ethnography of the regulation of hate speech online by examining the infrastructure of social media platforms, the content of speech acts (including coded speech) and their offline effects. These three levels can be analysed using an adapted version of Erving Goffman’s heuristic model of backstage, onstage and offstage presentations of the self in everyday life. A digital ethnography of law implies both a qualitative and quantitative study of offline effects of online speech, including harmful consequences that are direct as well as indirect. On this basis, the article presents findings that, while it is difficult to identify direct effects of online hate speech on violence, show the indirect effects include the silencing of dissent and an undermining of trust and cooperation in wider society.

Download the article from SSRN at the link.

November 15, 2019 | Permalink

Goodman and Whittington on Section 230 of the Communications Decency Act and the Future of Online Speech @ellgood

Ellen P. Goodman, Rutgers Law School, and Ryan Whittington, German Marshall Fund of the United States, has published Section 230 of the Communications Decency Act and the Future of Online Speech, a Rutgers Law School Research Paper. Here is the abstract.

Section 230 of the Communications Decency Act protects online intermediaries like social media platforms from being sued for transmitting problematic third-party content. It also lets them remove, label, or hide those messages without being sued for their choices. The law is thus simultaneously a shield from liability — encouraging platforms to transmit problematic content — and a sword — allowing platforms to manage that content as they like. Section 230 has been credited with creating a boisterous and wide-open Internet ecosystem. It has also been blamed for allowing platforms to profit from toxic speech. Everyone can agree that the Internet is very different from what was imagined in 1996 when Section 230 was penned. Internet firms have concentrated power and business models that are nothing like what they had then. No one contemplated the velocity, reach, scale, nature, and influence of the speech now flowing over digital infrastructure. It is entirely reasonable to rethink how Internet liability is apportioned. But it is critical that we are clear about how changes to Section 230 might strengthen government control over speech, powerful platforms’ control, and/or make the Internet even more lawless. Section 230 has become a flashpoint in the “techlash” against the power of dominant technology firms. Critics of all political stripes want to reform or repeal the law. For example, House Speaker Nancy Pelosi and Representative Adam Schiff have said that Section 230 effectively functions as a grant of power without responsibility. They have suggested that platforms need to perform more moderation to reduce harmful speech. Lawmakers on the right, including Senators Josh Hawley and Ted Cruz, have argued that platforms should maintain neutrality and prove that any moderation is non-discriminatory and unbiased. Other proposals attempt to provide narrowly tailored and content-neutral reforms to encourage Internet platforms to adopt greater responsibility over content moderation. Unfortunately, conversations about changing Section 230 have been marked by confusion about what the law actually does. Too often, they assume that Section 230 demands platform neutrality, when in fact it encourages content-moderation. Or they assume that Section 230 protects platforms from hate speech liability, when in fact it is the First Amendment that does that. Section 230 is too critical to the digital economy and expressive freedoms to gut it. But its form of intermediary liability should not be sacrosanct. Reforms should incentivize responsible and transparent platform governance. They should not dictate particular categories of content to be banned from the Internet, nor should they create publisher licensing schemes. Section 230 fostered uninhibited and robust speech platforms. If we now want more inhibition, we must take into account the power of concentrated speech platforms and the opacity of algorithmic content moderation. We must also recognize that if the law makes it too risky to moderate speech, platforms may walk away entirely from the job. This paper explains how Section 230 arose, what it was meant to achieve, where it failed, and how proposals to fix it fare.

Download the article from SSRN at the link.

November 15, 2019 | Permalink

Monday, November 11, 2019

Social Media, Traditional Media, and the Naming of the Whistleblower

From CNN: Both Facebook and YouTube announced on Friday that they are removing mentions of the whistleblower's name from their platforms, citing concerns that such content could could lead to harm and pointing to their policy prohibiting "outing of witness, informant, or activist." Facebook noted that if the media generally moved toward widespread disclosure of the whistleblower's name, the company might reconsider its decision. YouTube announced it was removing videos that alleged a particular individual was the whistleblower.

However, a Twitter spokesperson said that mentioning a particular person's name as the whistleblower did not constitute a violation of the company's policies. Both CNN and Fox have told their staffs not to speculate about the whistleblower's identity on air. However,  two Fox News guests have identified specific persons as the whistleblower. Lars Larson named someone on November 8,  and Mollie Hemingway named someone on November 11th, to the consternation of Howard Kurtz. 

November 11, 2019 | Permalink

Teeni-Harari and Yadin on Regulatory Literacy: Rethinking Television Rating in the New Media Age @Sharon_Yadin

Tali Teeni-Harari and Sharon Yadin, both of the Peres Academic Center, are publishing Regulatory Literacy: Rethinking Television Rating in the New Media Age in volume 88 of the University of Missouri-Kansas City Law Review (2019). Here is the abstract.

Rating systems for the regulation of television programs currently address parents, advising them of the presence of content considered inappropriate for children so that they can screen what their children watch. However, today’s children increasingly choose television content on their own, as parental supervision is consistently declining. This essay argues that the existing regulatory regime for rating television content is unsuited to the present-day viewing styles of youngsters, and presents policy recommendations.

Download the article from SSRN at the link.

November 11, 2019 | Permalink

Tuesday, November 5, 2019

Marzen on A Constitutional Right to Public Information @floridastate

Chad G. Marzen, Florida State University, has published A Constitutional Right to Public Information. Here is the abstract.

In the wake of the 2013 United States Supreme Court decision of McBurney v. Young (569 U.S. 221), this Article calls for policymakers at the federal and state levels to ensure governmental records remain open and accessible to the public. It urges policymakers to call not only for strengthening of the Freedom of Information Act and the various state public records law, but to pursue an amendment to the United States Constitution providing a right to public information. This Article proposes a draft of such an amendment: The right to public information, being a necessary and vital part of democracy, shall be a fundamental right of the people. The right of the people to inspect and/or copy records of government, and to be provided notice of and attend public meetings of government, shall not unreasonably be restricted. This Article analyzes the benefits of the amendment and concludes the enshrining of the right to public information in both the United States Constitution as well as various state constitutions will ensure greater access of public records and documents to the general public, consistent with the democratic value of open, transparent government.

Download the article from SSRN at the link.

November 5, 2019 | Permalink

Monday, November 4, 2019

CBS Asks Federal Judge To Dismiss Fairfax Defamation Suit

CBS is asking a federal district court to dismiss Virginia Lieutenant Governor Justin Fairfax's defamation suit against the network, saying that Mr. Fairfax's claim that an in-house attorney who knew both Mr. Fairfax and one of the women who accused the Virginia Lt. Governor of sexual assault knew of the woman's "history of mental and emotional instability" and should have known that her statements shouldn't have been relied on. The network's defense is that Mr. Fairfax cannot show actual malice and also that the network's report is fair to both parties. More here from and the Virginia Mercury.

Here's a story from NPR about the filing of the suit requesting $400 million in damages in September of 2019. More here from the Washington Post. 

November 4, 2019 | Permalink