Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, March 24, 2020

Sullivan and Tilley on Supreme Court Journalism @IowaLawSchool @LoyolaLaw

Barry Sullivan, Loyola University (Chicago) School of Law, and Cristina Tilley, University of Iowa College of Law, have published Supreme Court Journalism: From Law to Spectacle? at 77 Washington & Lee Law Review 343 (2020). Here is the abstract.

Few people outside certain specialized sectors of the press and the legal profession have any particular reason to read the increasingly voluminous opinions through which the Justices of the Supreme Court explain their interpretations of the Constitution and laws. Most of what the public knows about the Supreme Court necessarily comes from the press. That fact raises questions of considerable importance to the functioning of our constitutional democracy: How, for example, does the press describe the work of the Supreme Court? And has the way in which the press describes the work of the Court changed over the past several decades? This Article seeks to address those questions by comparing the language used in print media coverage of two highly salient cases involving similar legal issues decided fifty years apart: Brown v. Board of Education and Parents Involved in Community Schools v. Seattle School District No. 1. Our study suggests that, at least in highly salient cases, the nature of print media coverage may well have changed dramatically during that fifty-year interval. More specifically, our study suggests that while the mid-twentieth century press described the Court’s decisions largely in terms of the legal questions presented, the contemporary press seems more likely to describe the Court’s decisions in non-legal terms—as something resembling a spectacle, in which unelected judges are presumed to decide cases, not on properly contested legal grounds, but based on their respective political commitments. That conclusion is striking. First, it suggests that in the ongoing scholarly debate over the nature of the Justices’ approach to their work, the press has chosen sides. Rather than closely interrogating the Court’s work to determine whether particular analyses and results can be defended on legal grounds, contemporary reporting seems to proceed on the assumption that that question lacks salience—because we already know that the Justices’ political views and allegiances are the true drivers of Supreme Court decisions. Thus, contemporary press coverage tends to emphasize such factors as the political affiliation of the president who appointed a particular Justice. Second, it raises questions about the way in which the contemporary press is discharging its responsibility to educate the public about the Court and its work. It also raises the possibility that the public will become predisposed to doubt the Court’s legitimacy, and, indeed, the very legitimacy of the American system of judicial review. If the Court’s decisions really reflect nothing more than the Justices’ political predilections and commitments, or those of the elites to which they belong, it is important for the public to know that. Nothing could be more important than discovering and documenting the fact that the Justices wear no clothes. On the other hand, whether Supreme Court decisions deserve to be viewed in that way is a question that needs to be tested through a careful examination of the Court’s work product. It is something to be proved rather than presumed. The contemporary print media’s seemingly casual assumption that the main point about reporting on the Supreme Court is not to test the validity of the Court’s reasoning, and explore its flaws, but to try to trace connections between the Justices’ voting behavior and their political or other commitments, may well corrode public confidence in the Court. If that occurs unnecessarily, and without adequate justification, the consequences for the institution of judicial review may well be dire. Moreover, if the public’s expectations are lowered, so too may be the standards the Justices set for themselves and each other. In other words, if the press leads us to believe that the Court’s work product is nothing more than politics, that may well become a self fulfilling prophecy—if it has not already happened.
Download the article from SSRN at the link.

March 24, 2020 | Permalink

Chafetz on Congressional Overspeech @joshchafetz

Josh Chafetz, Cornell Law School, is publishing Congressional Overspeech in volume 89 of Fordham Law Review. Here is the abstract.

Political theater. Spectacle. Circus. Reality show. We are constantly told that, whatever good congressional oversight is, it certainly isn’t those things. Observers and participants across the ideological and partisan spectrums use those descriptions as pejorative attempts to delegitimize oversight conducted by their political opponents or as cautions to their own allies of what is to be avoided. Real oversight, on this consensus view, is about fact-finding, not about performing for an audience. As a result, when oversight is done right, it is both civil and consensus-building. While plenty of oversight activity does indeed involve bipartisan attempts to collect information and use that information to craft policy, this Article seeks to excavate and theorize a different way of using oversight tools, a way that focuses primarily on their use as a mechanism of public communication. I refer to such uses as congressional overspeech. After briefly describing the authority, tools and methods, and consensus understanding of oversight in Part I, the Article turns to an analysis of overspeech in Part II. The three central features of overspeech are its communicativity, its performativity, and its divisiveness, and each of these is analyzed in some detail. Finally, Part III offers two detailed case studies of overspeech: the Munitions Inquiry of the mid-1930s, and the McCarthy and Army-McCarthy Hearings of the early-1950s. These case studies not only demonstrate the dynamics of overspeech in action but also illustrate that overspeech is both continuous across and adaptive to different media environments. Moreover, the case studies illustrate that overspeech can be used in the service of normatively good, normatively bad, and normatively ambivalent political projects. Overspeech is a potent congressional tool—and, like all tools, it can be put to a variety of uses.

Download the article from SSRN at the link.

March 24, 2020 | Permalink

Monday, March 23, 2020

Mostert on Free Speech and Internet Regulation @KCL_Law

Frederick Mostert, King's College London, has published Free Speech and Internet Regulation at 14 Journal of Intellectual Property Law & Practice 607 (August 2019). Here is the abstract.

The article analyses free speech and internet regulation. Governments have come up with new regulatory proposals for privately-controlled platforms virtually overnight in contrast to their traditional hands-off approach to platform regulation. The Internet Safety Report in the UK, the EU Directive on Copyright in the Digital Single Market and the US President’s Memorandum on Combating Trafficking in Counterfeit and Pirated Goods, and a slew of other regulatory proposals, were produced within an extraordinarily short space of time. In particular, free speech has always required public forums to flourish, but shaping these forums to the challenging contours of today’s online world presents unique challenges. Social media forums serve as the prime source of knowledge and human thought for many users and have taken on the identity of ‘the modern public square’, as noted by the US Federal Supreme Court.

Download the article from SSRN at the link.

March 23, 2020 | Permalink

Monday, March 16, 2020

Marmor on Privacy in Social Media @CornellLaw

Andrei Marmor, Cornell Law School, has published Privacy in Social Media as Cornell Legal Studies Research Paper No. 20-10. Here is the abstract.

This paper is about the state of privacy in social media. Most people’s immediate concern about privacy in social media, and internet platforms more generally, relate to data protection. People fear that information they post on various platforms is potentially abused by corporate entities, governments, or even criminals, in all sorts of nefarious ways. The main premise of this paper is that that concerns about data protection, legitimate and serious as they may be, are not, mostly, about the right to privacy. Privacy is about control over the presentation of the self, not about protection of property rights. From the perspective of privacy as self-presentation, I argue that social media is, generally, very conducive to privacy—in fact, often too much so. The main tension in the domain of social media is between privacy and authenticity: social media enables a great deal of privacy at the expense of truth and authenticity. But the medium also comes with dangers of exposure that carry serious risks to privacy, potentially undermining peoples’ ability to control what aspects of themselves they present to others. Privacy in social media is a mixed bag, pulling in opposite directions, none of them free of serious concerns.

Download the article from SSRN at the link.

March 16, 2020 | Permalink

Yuvaraj and Giblin on Whether Contracts Are Enough: An Empirical Study of Author Rights in Australian Publishing Agreements @rgibli @MelbLawSchool @MonashLawSchool

Joshua Yuvaraj, Monash University Faculty of Law, and Rebecca Giblin, University of Melbourne Law School, are publishing Are contracts enough? An empirical study of author rights in Australian publishing agreements in volume 44 of Melbourne University Law Review (2020). Here is the abstract.

A majority of the world’s nations grant authors statutory reversion rights: entitlements to reclaim their copyrights in certain circumstances, such as their works becoming unavailable for purchase. In Australia (as in the UK) we have no such universal protections, leaving creator rights to be governed entirely by their contracts with investors. But is this enough? We investigate that question in the book industry context via an exploratory study of publishing contracts sourced from the archive of the Australian Society of Authors. We identify serious deficiencies in the agreements generally as well as the specific provisions for returning rights to authors. Many contracts were inconsistent or otherwise poorly drafted, key terms were commonly missing altogether, and we demonstrate that critical terms evolved very slowly in response to changed industry realities. In response to this new evidence we propose that consideration be given to introducing baseline minimum protections with the aim of improving author incomes, investment opportunities for publishers and access for the public.

Download the article from SSRN at the link.

March 16, 2020 | Permalink

Yablon on Political Advertising, Digital Platforms, and the Democratic Deficiencies of Self-Regulation @UWMadison @WisconsinLaw

Robert Yablon, University of Wisconsin Law School, has published Political Advertising, Digital Platforms, and the Democratic Deficiencies of Self-Regulation at 104 Minn. L. Rev. Headnotes 13 (2020). Here is the abstract.

Amid ongoing concerns about foreign electoral interference and fake news, digital platforms like Facebook, Google, and Twitter have been rolling out new political advertising policies for the 2020 election cycle. These emergent policies address what sort of ads are permissible, who can run them, how particular audiences can be targeted, and what disclosures and disclaimers must be made. Collectively, the policies highlight the extent to which platforms have become active regulators and powerful gatekeepers of modern political discourse. They also raise a host of questions about the relationship between digital governance and the law of democracy. This Essay aims to draw attention to the rise of platform self-regulation of political advertising and to encourage inquiry into its implications. In future work, scholars can and should debate the merits of particular measures, scrutinize platforms’ implementation and enforcement efforts, and consider the systemic consequences of these self-regulatory activities. As a first step, the Essay zooms out and identifies an overarching process-based concern. Platforms often invoke democratic values to justify their political advertising policies. Yet their ostensible efforts to promote and safeguard democracy lack any real democratic imprimatur. Platforms have not adopted their policies through open, participatory processes, and in at least some instances, their choices appear to prioritize the interests of political professionals over the preferences and autonomy of platform users. The Essay concludes with some tentative suggestions for addressing these democratic deficiencies.

Download the essay from SSRN at the link.

March 16, 2020 | Permalink

Tuesday, March 10, 2020

Chen on Free Speech, Rational Deliberation, and some Truths about Lies @SturmCOL

Alan K. Chen, University of Denver Sturm College of Law, has published Free Speech, Rational Deliberation, and some Truths about Lies as University of Denver Legal Studies Research Paper No. 20-07. Here is the abstract.

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech – promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should count as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also limit the state’s ability to control the way we emotionally experience ideas, beliefs, and even facts. It claims that like art, music, religious expression, and other forms of human communication that do not facilitate rational deliberation in their audiences, fake news can promote a form of expressive experiential autonomy. It can allow individuals to experience individual self-realization and identify formation and also form cultural connections with like-minded people, advancing social cohesion. Drawing on First Amendment theory and on the fields of cognitive and social psychology and political science, the Article views consumers of fake news not simply as uninformed, gullible rubes, but as individuals seeking to simultaneously distinguish themselves through individualization or self-identification and group association with a community of people with whom they share values. Understood in this way, the inquiry illustrates why the rational deliberation principle is incomplete because it does not explain much of what we ought to recognize as “speech.” This more nuanced understanding of the way that fake news connects with much of its audience has implications for free speech theory, First Amendment doctrine, and policymaking options for addressing the potential harms of fake news. To be clear, this Article is not a defense of fake news or those who intentionally attempt to influence others’ behavior by spreading false facts disguised as legitimate news. Thus, the Article concludes by explaining that while fake news should always be covered by the First Amendment, it should not always be protected.

Download the article from SSRN at the link.

March 10, 2020 | Permalink

Green on Candidate Privacy @WMLawSchool

Rebecca Green, William & Mary Law School, is publishing Candidate Privacy in the Washington Law Review. Here is the abstract.

In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers’ concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choice at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a changing information architecture brought on by the rise of the internet and digital media that drastically alters how information about candidates is circulated. The second is a shift in who runs for office. As women and minorities — overwhelmingly targets of the worst forms of harassment — increasingly throw their hats in the ring, this Article argues that competing democratic values should challenge previous assumptions about candidate privacy. Far from suggesting easy answers, this Article offers a framework for courts to weigh candidate privacy interests in a more nuanced way, drawing on vetting principles for aspirants for other positions of public trust. While there are good reasons candidates should have far less privacy than ordinary citizens, the reflexive denial of candidate privacy must have its limits if we care about nourishing our evolving democracy.

Download the article from SSRN at the link.

March 10, 2020 | Permalink

Turner on Limits to Terror Speech in the UK and USA @DrIanTurner

Ian Turner, University of Central Lancashire Law School, has published Limits to Terror Speech in the UK and USA: Balancing Freedom of Expression With National Security at 2 Amicus Curiae 201 (2020). Here is the abstract.

Article 10(1) of the European Convention on Human Rights (ECHR), freedom of expression, is incorporated into UK law. With the growing Islamist terror threat after 9/11, particularly threatening European security, the Council of Europe introduced the Convention on the Prevention of Terrorism (CPT), 2005. One of the Articles within the Convention, Article 5, obliges states to outlaw ‘public provocation to commit a terrorist offence’. Drawing on its obligations in the CPT, the UK enacted s.1 of the Terrorism Act 2006: ‘encouragement of terrorism’. But in implementing its duties, the UK went further. There are very real concerns, therefore, about the effects of this legislation on freedom of expression. The test for interpreting breaches of Article 10 is ‘proportionality’. Comparatively, in America there is a much stronger test than proportionality, ‘strict scrutiny’, in assessing limits to terror speech. But in the age of Islamism, together with the speed, ease and little cost incurred in sharing terror speech online, should there not be a reappraisal of American law? The author is based in the UK. But the UK’s approach to limiting terror speech is arguably too intrusive of freedom of expression. This paper, therefore, proposes a compromise approach between the two jurisdictions.

Download the article from SSRN at the link.

March 10, 2020 | Permalink