Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, January 31, 2020

FCC: Robocaller Should Pay Nearly $13M Fine For Illegal, Spoofed Robocalls

The FCC has suggested that Scott Rhodes, whom the agency has named as a robocaller who placed "unlawful, spoofed robocalls to target a community grappling with the recent murder of a local woman, threaten a journalist and newspaper, and attempt to influence a jury" should pay a nearly $13 million fine for those calls to people in six states, including California, Florida, and Virginia.

Four FCC Commissioners voted in favor of the action. Commissioner Jessica Rosenworcel dissented on the grounds that the fine should have been higher. 

Read the FCC's statement here.

Read Commissioner Rosenworcel's statement here.

January 31, 2020 | Permalink

Hooker on Censorship, Free Speech & Facebook: Applying the First Amendment to Social Media Platforms via the Public Function Exception @MatthewPHooker

Matthew Hooker, Wake Forest University School of Law, is publishing Censorship, Free Speech & Facebook: Applying the First Amendment to Social Media Platforms via the Public Function Exception in volume 15 of the Washington Journal of Law, Technology & Arts (2019). Here is the abstract.

Society has a love-hate relationship with social media. Thanks to social media platforms, the world is more connected than ever before. But with the ever-growing dominance of social media there have come a mass of challenges. What is okay to post? What isn't? And who or what should be regulating those standards? Platforms are now constantly criticized for their content regulation policies, sometimes because they are viewed as too harsh and other times because they are characterized as too lax. And naturally, the First Amendment quickly enters the conversation. Should social media platforms be subject to the First Amendment? Can—or should—users be able to assert their First Amendment rights against these platforms? This article dives into the legal and policy implications surrounding the application of the First Amendment to social media platforms. Because the state action doctrine generally serves as a bar to enforcing constitutional restrictions on private actors, this Article examines these First Amendment questions in light of the state action doctrine, and more particularly its public function exception. This Article considers whether social media platforms fit within the public function exception and whether such an applicable is tenable and proper as a matter of law and public policy.

Download the article from SSRN at the link.

January 31, 2020 | Permalink

Thursday, January 23, 2020

Call For Applications: Visiting Professor, LSU Law Center, 2020-2021 Academic Year

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire a visiting professor for the 2020-21 academic year or for Fall 2020 and/or Spring 2021 in the following areas: federal courts, constitutional law, civil procedure, and evidence. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials, and a commitment to outstanding teaching.


The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.


The Faculty Appointments Committee will begin reviewing applications on February 7, 2020 and will consider applications thereafter on a rolling basis until the position is filled. Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:


Melissa T. Lonegrass and Christina M. Sautter
Co-Chairs, Faculty Appointments Committee


c/o Pam Hancock (or by email to phancock@lsu.edu)

Paul M. Hebert Law Center
Louisiana State University
1 East Campus Drive
Baton Rouge, Louisiana 70803-0106

January 23, 2020 | Permalink

Tuesday, January 21, 2020

Garon on Dysregulating the Media: The Unintentional Deregulation of American Media @NSULawCollege @GaronJon

Jon Garon, Shepard Broad College of Law, has published Dysregulating the Media: The Unintentional Deregulation of American Media. Here is the abstract.

Netflix, Amazon, YouTube, and Apple have been joined by Disney+, Twitch, Facebook and others to supplant the broadcast industry. As the FCC, FTC, and other regulators struggle, a new digital divide has emerged. The current regulatory regime for television is built upon the government’s right to manage over-the-air broadcasting. As content producers shift away from broadcast and cable, much of the government’s regulatory control will end, resulting in new consequences for public policy and new challenges involving privacy, advertising, and antitrust law. Despite the technological change, there are compelling government interests in a healthy media environment. This article explores the constitutionally valid approaches available to promote the public interest of diversity of viewpoint, assure access to news, educational content, and cultural content for those without the financial resources to buy broadband access, and protect from the heightened risks to personal privacy. The article calls upon the FTC to become the lead regulator, enforcing the Sherman Act, Clayton Act, and the FTC Act’s provisions to assure that competition, online advertising, customer privacy, and the public interest are rigorously enforced.

Download the article from SSRN at the link.

January 21, 2020 | Permalink

Friday, January 17, 2020

Ninth Circuit: Press Has Qualified Right of Access To Newly Filed Civil Complaints That Attaches When Complaints Are Filed

The Ninth Circuit has ruled that the press has a "qualified right of timely access to newly filed civil nonconfidential complaints that attaches when the complaint is filed. However this right does not entitle the press to immediate access to those complaints. Some reasonable restrictions resembling time, place, and manner regulations that result in incidental dealys in access are constitutionally permitted where they are content-neutral, narrowly tailored and necessary to preserve the court's important interest in the fair and orderly administration of justice."

 

Courthouse News Service v. Planet, U.S.C.A., 9th Circuit, D.C. No. 2:11-cv-08083-SJO-FFM (Jan. 17, 2020).

January 17, 2020 | Permalink

Thursday, January 16, 2020

From the Fourth Estate: Translations Now Available of the Journalism Code of Practice

Wednesday, January 15, 2020

Iowa Legislature Refuses To Grant Blogger Press Credentials

The Iowa Legislature has refused press credentials to Laura Belin, who criticizes its policies on her blog, Bleeding Heartland. The AP notes that both Houses of the Legislature, which is controlled by the Republicans, justified the refusal by saying either that she is a non-traditional journalist or not a member of the press. Press rights groups are questioning the legislature's actions and defending Belin's right to press credentials based on the grant of credentials to similarly-situated members of the media.

January 15, 2020 | Permalink

Tushnet on Content Moderation in an Age of Extremes @rtushnet

Rebecca Tushnet, Harvard Law School, is publishing Content Moderation in an Age of Extremes in Case Western Reserve Journal of Law, Technology & the Internet (volume 10, 2019). Here is the abstract.

Where everything, including bad behavior, can be found in endless proliferation online, what if anything can be done? My experience leads me to suggest a few lessons. I helped found a nonprofit, the Organization for Transformative Works (“OTW”), which focuses on protecting and preserving noncommercial transformative works, specifically fanfiction and other fanworks—that is, new stories and art based on existing, often in-copyright, works such as the Harry Potter series and Marvel’s Avengers movies. While some people argue for increased government intervention in the form of legal duties to remove various types of unwanted content, others maintain that the best solution is to reconstruct some sort of democratic process within a service’s “polity” itself, a procedural solution to knotty problems of substance. I want to complicate the debate by discussing the multiple types of actors in the intermediary space; some entities, like the OTW, don’t resemble the profit-seeking model at which most regulatory and governance proposals are directed. Other online entities, such as those that participate in the domain name system, have very different functions and abilities than the websites and apps most people think of as “the internet.” If we don’t keep these variances in mind, we are unlikely to get the results we seek.

Download the article from SSRN at the link.

January 15, 2020 | Permalink

Tuesday, January 14, 2020

Pedrioli on Whether Incitement Is Easier To Punish on the Internet Than It Is On Television

Carlo Pedrioli, Liverpool Hope University, has published Is Incitement on the Internet Easier to Punish than Incitement on Television? A Case Study of the Koran-Burning of Florida Pastor Terry Jones at Free Speech, Privacy and Media: Comparative Perspectives 49 (Russell L. Weaver, Mark D. Cole, Steven I. Friedland, Duncan Fairgrieve, András Koltay & Arnaud Raynouard eds., 2019). Here is the abstract.

This paper considers the case of Terry Jones, the controversial Florida pastor who, beginning in 2010, threatened to burn, and eventually did burn, copies of the Koran, the holy book of Muslims. Taking advantage of newer media technology, Jones live-streamed his performance on the Internet, thus making the performance available around the planet, and his Koran-burning drew international attention. The actions of Jones began at a time when politicians in numerous states were trying to capitalize on and exacerbate a wave of anti-Muslim sentiment. The paper tentatively concludes that, under United States law, Internet-based incitement may be somewhat easier to punish than TV-based incitement. The paper unfolds initially with a summary of the Terry Jones case and then continues with a constitutional analysis of that case, noting how this type of case might be different depending whether the speech involved appeared via Internet or TV. In cases of Internet communication, as opposed to cases of TV communication, the likelihood of inciting or producing lawless action probably is higher because accessing the Internet to send messages is so easy for so many people, and a very large potential audience can receive those messages whenever convenient.

Download the essay from SSRN at the link.

January 14, 2020 | Permalink

Samples on Why the Government Should Not Regulate Content Moderation of Social Media @JohnSamplesCato

John Samples, Cato Institute, has published Why the Government Should Not Regulate Content Moderation of Social Media as Cato Institute Policy Analysis, No. 865. Here is the abstract.

President Trump recently complained that Google searches are biased against Republicans and conservatives. Many conservatives argue that Facebook and Google are monopolies seeking to restrict conservative speech. In contrast, many on the left complain that large social media platforms fostered both Trump’s election in 2016 and violence in Charlottesville in 2017. Many on both sides believe that government should actively regulate the moderation of social media platforms to attain fairness, balance, or other values. Yet American law and culture strongly circumscribe government power to regulate speech on the internet and elsewhere. Regulations of social media companies might either indirectly restrict individual speech or directly limit a right to curate an internet platform. The First Amendment offers strong protections against such restrictions. Congress has offered additional protections to tech companies by freeing them from most intermediary liability for speech that appears on their platforms. The U.S. Supreme Court has decided that private companies in general are not bound by the First Amendment. However, some activists support new efforts by the government to regulate social media. Although some platforms are large and dominant, their market power can disintegrate, and alternatives are available for speakers excluded from a platform. The history of broadcast regulation shows that government regulation tends to support rather than mitigate monopolies. Others worry that social media leads to “filter bubbles” that preclude democratic deliberation. But the evidence for filter bubbles is not strong, and few remedies exist that are compatible with the Constitution. Speech on social media directly tied to violence — for example, terrorism — may be regulated by government, but more expansive efforts are likely unconstitutional. Concern about “interference” in U.S. elections glosses over the incoherence of current policies. Some foreign speech, online and off, is legal if the relationship of a speaker and a foreign power is disclosed. Preventing harms caused by “fake news” or “hate speech” lies well beyond the jurisdiction of the government; tech firms appear determined to deal with such harms, leaving little for the government to do.

Download the article from SSRN at the link.

January 14, 2020 | Permalink

Friday, January 10, 2020

Cronin on Damsels in Distress: Copyright Woes of Perry and Polly @gwlaw

Charles Cronin, George Washington University Law School, has published Damsels in Distress: Copyright Woes of Perry and Polly. Here is the abstract.

On July 29, 2019 a jury in Los Angeles awarded Marcus Gray damages of nearly three million dollars pursuant to its verdict that Katy Perry’s hit “Dark Horse” infringed the copyright in Gray’s rap song 'Joyful Noise'. The verdict, which Perry has appealed, has generated considerable published opprobrium about its forebodings for songwriters, and more broadly the American popular music industry and consumers of its output. The recent disposition of the Perry dispute is not the first in which a court found liability based on allegations of copying a particular combination and arrangement of otherwise unprotectable elements in a musical work. Joseph Fishman traces the lineage of this basis to Austin v. Columbia Graphophone Co., a 1923 English case. This Article argues that Austin’s rationale for finding infringement betrays a misunderstanding of the interdependent, yet hierarchical, elements of music composition. The musical genres in Austin v. Columbia Graphophone are far removed from those in recent claims against Led Zeppelin, Katy Perry, et al. Austin, however, anticipates the very quandary that today bedevils courts adjudicating music infringement disputes that are based on allegations of similar arrangements of unprotectable expression. Recent cases in the United States have established that marginally original sculptural and visual works merit 'thin' protection, and that only virtually identical unauthorized copies may infringe them. This Article suggests that Austin might have been decided differently had the court applied this reasoning, and also recommends that courts in the United States should now extend this elevated threshold of infringement to music infringement cases in order to restore the damaged equipoise between owners of copyrighted musical works and musicians creating new ones.

Download the article from SSRN at the link.

January 10, 2020 | Permalink

Wednesday, January 8, 2020

Moon on Whether Freedom of Expression Has a Future @richard_moon

Richard Moon, University of Windsor Faculty of Law, has published Does Freedom of Expression Have a Future? Here is the abstract.

A commitment to free speech means protecting speech for reasons that are independent of the truth or merit of its content. This commitment, though, depends on certain assumptions or conditions – most notably that individuals are capable of making reasoned and independent judgments and have access to different opinions and reliable factual information. These conditions, of course, never hold perfectly, but they now seem to be eroding at a rapid pace. The character of public speech has changed in the internet era: how we speak to one another and how we experience that speech. Audiences have become more fragmented. Disinformation and conspiracy theories seem to spread easily and widely, so that distortion and deceit rather than direct censorship may now be the most significant threat to public discourse. There is little common ground in the community on factual matters or the reliability of different sources of information, which has made it difficult, even impossible, to discuss issues and to agree or compromise on public policy. Those who hold competing positions seem rarely to engage with one another and, when they do, their engagement is often combative. A growing number of people feel they should not be expected to hear speech with which they disagree, or which is critical of their views. The spaces or platforms in which public speech occurs have become increasingly privatized and therefore outside the scope of the constitutional right to freedom of expression. What future does the right to free speech have in this changing communication environment?

Download the article from SSRN at the link.

January 8, 2020 | Permalink

Skorup and Huddleston on The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation @bskorup @jrhuddles @Mercatus

Brent Skorup, George Mason University Mercatus Center, and Jennifer Huddleston, Mercatus Center, are publishing The Erosion of Publisher Liability in American Law, Section 230, and the Future of Online Curation in the Oklahoma Law Review. Here is the abstract.

As internet businesses started to emerge in the 1990s, online content distributors were taken to court for defamatory material they published or republished. While one court found in Cubby v. CompuServe (1991) that the internet-based company was not liable, a second court trying Stratton Oakmont v. Prodigy (1995) arrived at the opposite conclusion. Congress resolved the ambiguity by enacting the Communications Decency Act of 1996, of which Section 230 established a broad liability shield for online content distributors. Two decades later, Section 230 has come under scrutiny, and many critics and lawmakers characterize it as a drastic deviation from common law that should be corrected. However, an examination of the relevant caselaw reveals that courts had instead narrowed liability for publishers, republishers, and distributors for decades culminating in the Cubby decision. Section 230, we suggest, codified this process, establishing a publisher liability regime that would have likely emerged in common law. Based on this legal history, we discuss the circumstances under which mandated online content takedown could be prudent and practicable and also under which continuing Section 230 protections may prove necessary.

Download the article from SSRN at the link.

January 8, 2020 | Permalink

Mueller on Challenging the Social Media Moral Panic: Preserving Free Expression Under Hypertransparency @miltonmueller

Milton Mueller, Georgia Institute of Technology, is publishing Challenging the Social Media Moral Panic: Preserving Free Expression Under Hypertransparency in Cato Institute Policy Analysis (no. 876) (2019). Here is the abstract. Cato Institute Policy Analysis, No. 876, 2019

Social media are now widely criticized after enjoying a long period of public approbation. The kinds of human activities that are coordinated through social media, good as well as bad, have always existed. However, these activities were not visible or accessible to the whole of society. As conversation, socialization, and commerce are aggregated into large-scale, public commercial platforms, they become highly visible to the public and generate storable, searchable records. Social media make human interactions hypertransparent and displace the responsibility for societal acts from the perpetrators to the platform that makes them visible. This hypertransparency is fostering a moral panic around social media. Internet platforms, like earlier new media technologies such as TV and radio, now stand accused of a stunning array of evils: addiction, fostering terrorism and extremism, facilitating ethnic cleansing, and even the destruction of democracy. The social-psychological dynamics of hypertransparency lend themselves to the conclusion that social media cause the problems they reveal and that society would be improved by regulating the intermediaries that facilitate unwanted activities. This moral panic should give way to calmer reflection. There needs to be a clear articulation of the tremendous value of social media platforms based on their ability to match seekers and providers of information in huge quantities. We should also recognize that calls for government-induced content moderation will make these platforms battlegrounds for a perpetual intensifying conflict over who gets to silence whom. Finally, we need a renewed affirmation of Section 230 of the 1996 Telecommunications Act, which shields internet intermediaries from liability for users’ speech. Contrary to Facebook’s call for government-supervised content regulation, we need to keep platforms, not the state, responsible for finding the optimal balance between content moderation, freedom of expression, and economic value. The alternative of greater government regulation would absolve social media companies of market responsibility for their decisions and would probably lead them to exclude and suppress even more legal speech than they do now. It is the moral panic and proposals for regulation that threaten freedom and democracy.

Download the paper from SSRN at the link.

January 8, 2020 | Permalink

NPR Accepting Applications For New Transparency in Government Legal Fellow Position @NPR

NPR is accepting applications for its new Transparency in Government Legal Fellow. Under the guidance of NPR staff lawyers, the fellow will work with journalists at NPR to obtain access to public records that shed light on the operations of government.

 

This is a full-time, 2-year fellowship that will begin in August or early September of 2020. Applications will be reviewed on a rolling basis starting Jan. 15.

 

More information is available in the posting here.

January 8, 2020 | Permalink

Tuesday, January 7, 2020

Silbey, Subotnik, and DiCola on Existential Copyright and Professional Photography @JSilbey

Jessica M. Silbey, Northeastern University School of Law, Eva E. Subotnik, St. John's University School of Law, and Peter C. DiCola, Northwestern University School of Law, have published Existential Copyright and Professional Photography at 95 Notre Dame L. Rev. 263 (2019). Here is the abstract.

Intellectual property law has intended benefits, but it also carries certain costs — deliberately so. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its-kind study, we conducted thirty-two in-depth qualitative interviews of photographers about how copyright law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More importantly, our data call for an expansion of the set of possible justifications for intellectual property. Contrary to accepted wisdom, we find that copyright provides photographers with economic leverage in up-front negotiations with clients but not much benefit in anticopying protection afterwards. Beyond that, copyright also serves as part of photographers’ multifaceted sense of professionalism to protect the integrity of their art and business. Identifying these unrecognized and surprising functions of copyright in creators’ accounts is separate from evaluating their desirability. But we argue that the real-world functions of copyright are better candidates for justification and better subjects for policy discussion than chalkboard theories. In this way, our study of photographers moves the longstanding debate over intellectual property law’s purpose to a new and more informed place.

Download the article from SSRN at the link.

January 7, 2020 | Permalink