Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, June 26, 2020

Tilley on (Re)Categorizing Defamation @CristinaTilley

Cristina Tilley, University of Iowa College of Law, is publishing (Re)Categorizing Defamation in volume 94 of the Tulane Law Review (2020). Here is the abstract.

This Article makes a tort-based argument for reassessing modern defamation law. It opens by considering the role that defendant agency plays in the search for wrongfulness throughout the intentional torts, negligence, and strict liability. While a defendant’s control over his behavior is a crucial precondition for intentional tort or negligence liability, the piece suggests that it is the knowing and purposeful forfeiture of control over risk-insensitive instrumentalities that justifies the assignment of liability on a strict basis for select undertakings. Building on this insight, the piece suggests that the original media defamation defendants, job printers, were subject to strict liability because they duplicated for mass consumption, by remote readers, words whose capacity to harm they could not control. However, as the media evolved throughout the nineteenth and early twentieth centuries, publishers exercised increasingly greater control over the words they distributed and the audiences who would read them. Consequently, when the Supreme Court decided in 1964 to treat tort law as an instrument of speech policy, publisher control made it convenient and theoretically attractive to incentivize bold coverage of government and society by shifting away from strict liability and requiring plaintiffs to prove some media fault. Ironically, almost immediately after the Court shifted the basis for holding media defendants liable for defamation, publisher control over financial decisions, distribution technology, and content generation began to recede. Most notably, the modern media increasingly uses algorithms to produce news stories that are posted directly to the Internet with no human oversight. In other words, the theoretical justification for the Court’s modern fault requirement no longer exists. Moreover, the instrumental self-governance benefits of the modern fault requirement that the Court envisioned have not come to fruition. In fact, absent the quasi-warranty function performed by a strict rule that assigned liability for even inadvertent errors, and the introduction of a regime that excuses errors not arising from intent or negligence, consumers no longer equate “news” with “truth.” This disconnect has arguably contributed to public despair about the possibility of self-educating and self-governing by consuming news. The piece concludes by asking whether, for both theoretical and instrumental reasons, it is worth reconsidering a default rule of strict liability for the defamation tort.

Download the article from SSRN at the link.

June 26, 2020 | Permalink

Tilley on (Re)Categorizing Defamation @CristinaTilley

Cristina Tilley, University of Iowa College of Law, is publishing (Re)Categorizing Defamation in volume 94 of the Tulane Law Review (2020). Here is the abstract.

This Article makes a tort-based argument for reassessing modern defamation law. It opens by considering the role that defendant agency plays in the search for wrongfulness throughout the intentional torts, negligence, and strict liability. While a defendant’s control over his behavior is a crucial precondition for intentional tort or negligence liability, the piece suggests that it is the knowing and purposeful forfeiture of control over risk-insensitive instrumentalities that justifies the assignment of liability on a strict basis for select undertakings. Building on this insight, the piece suggests that the original media defamation defendants, job printers, were subject to strict liability because they duplicated for mass consumption, by remote readers, words whose capacity to harm they could not control. However, as the media evolved throughout the nineteenth and early twentieth centuries, publishers exercised increasingly greater control over the words they distributed and the audiences who would read them. Consequently, when the Supreme Court decided in 1964 to treat tort law as an instrument of speech policy, publisher control made it convenient and theoretically attractive to incentivize bold coverage of government and society by shifting away from strict liability and requiring plaintiffs to prove some media fault. Ironically, almost immediately after the Court shifted the basis for holding media defendants liable for defamation, publisher control over financial decisions, distribution technology, and content generation began to recede. Most notably, the modern media increasingly uses algorithms to produce news stories that are posted directly to the Internet with no human oversight. In other words, the theoretical justification for the Court’s modern fault requirement no longer exists. Moreover, the instrumental self-governance benefits of the modern fault requirement that the Court envisioned have not come to fruition. In fact, absent the quasi-warranty function performed by a strict rule that assigned liability for even inadvertent errors, and the introduction of a regime that excuses errors not arising from intent or negligence, consumers no longer equate “news” with “truth.” This disconnect has arguably contributed to public despair about the possibility of self-educating and self-governing by consuming news. The piece concludes by asking whether, for both theoretical and instrumental reasons, it is worth reconsidering a default rule of strict liability for the defamation tort.

Download the article from SSRN at the link.

June 26, 2020 | Permalink

Wednesday, June 24, 2020

Judge Dismisses Nunes Attempt To Sue Twitter Over Bovine Account

A judge has dismissed Representative Devin Nunes's lawsuit against Twitter over the content of the Twitter account @DevinCow because Section 230 of the Communications Decency Act doesn't allow courts to treat social media platforms as publishers of the content of these accounts. Although Mr. Nunes could still pursue his lawsuit (and beef) against whoever maintains the @DevinCow account, his attorney admits they've been unable to determine who that might be. Maybe it's time to moove on? 

June 24, 2020 | Permalink

Fagan on Optimal Social Media Content Moderation and Platform Immunities

Frank Fagan, EDHEC Business School, is publishing Optimal Social Media Content Moderation and Platform Immunities in the European Journal of Law and Economics. Here is the abstract.

This Article presents a model of the lawmakers' choice between implementing a new content moderation regime that provides for platform liability for user-generated content versus continuing platform immunity for the same. The model demonstrates that lawmakers prefer platform immunity, even if incivility is increasing, if the costs of implementing a platform liability regime are greater than the costs of enforcing status quo law. In addition, inasmuch as implementation of a platform liability regime is coupled with new speech restrictions that are unconstitutional or prohibitively costly, lawmakers prefer immunity, but platforms are free to set strong content moderation policies consistent with existing law. Thus, the private governance function of platforms highlighted by Balkin and others is directly related to lawmakers' ability to enact and enforce alternatives, and further, it goes beyond mere private enforcement of existing free speech restrictions. Inasmuch as lawmakers are prohibited from suppressing unwanted speech by constitutional limits as well as lawmaking and enforcement costs, they give platforms wider discretion to make private suppression decisions. The status quo governance function of platforms, therefore, includes a private lawmaking function for determining which types of speech to suppress, albeit one bounded by the state’s appetite for alternatives.

Download the article from SSRN at the link.

June 24, 2020 | Permalink

During Briefing, State Department Avoids Question About Bolton's New Book

During a recent interview, a State Department employee cut off a Reuters reporter's question about John Bolton's new book in order to allow Secretary of State Mike Pompeo to move on to other questions. More here from USA Today. 

In this discussion of the incident, Politico notes that Bloomberg reporter Nicholas Wadhams asked what avoiding that question actually tells reporters about the First Amendment.  The State Department employee who handled the telephone briefing, Morgan Ortagus, responded that the briefing wasn't about Bolton's book.

June 24, 2020 | Permalink

The Importance of Fact Checking

Saturday, June 20, 2020

Judge Refuses To Grant TRO in Bolton Case

Here's a link to Judge Lamberth's ruling in U. S. v. Bolton.  The "horse is out of the barn" but Ambassador Bolton might not get to keep the winnings from the horse race. 

June 20, 2020 | Permalink

Monday, June 15, 2020

Reddit Ireland Limiting Online Hours To Address Hate Speech Issue

Reddit Ireland is going offline in the early morning (Irish time) in order to try to prevent postings from the United States that encourage hate speech. These postings appear during daytime in the U.S. More here from the BBC News, here from The Independent. 

June 15, 2020 | Permalink

Fox News Removes Misleading Images Of Seattle Protests From Website

From the New York Times, via Pen America's Daily Alerts on Rights and Expression: Fox News has taken down photographs from its websites that incorrectly depict events at the recent protests in Seattle. One was a combination of pictures taken over a series of several days. Another was taken in Minneapolis, not Seattle.

More here from the NYT, here from Time. 

June 15, 2020 | Permalink

Friday, June 12, 2020

Calderon on The Shield and the Sword: The Press Between the Public Interest and the Illegal Interception of Private Communications

Andres Calderon, Universidad del Pacifico Law School; Universidad del Pacifico Research Center, is publishing The Shield and the Sword: The Press Between the Public Interest and the Illegal Interception of Private Communications in volume 43 of the Hastings Communications and Entertainment Law Journal (2020). Here is the abstract.

Journalism is not only under the attack of fake news and post-truth politics. Its main enemy comes from within. Malpractices of journalism such as the fabrication of sources, fake stories, and illegal intrusion in people’s privacy, are part of the equation that leads to people’s distrust in news organization. This article addresses two very related topics that, nevertheless, have not been sufficiently studied as part of the same phenomenon: The reporter’s privilege to protect his sources’ identity and its connection with a journalist’s involvement in the illegal hacking or interception of private communications. After reviewing the most relevant case law from the federal and state level, and all states that have enacted a Shield Law, the author recommends an exception to the reporter’s privilege when there is probable cause that the journalist participated in illegal gathering activities of secluded information. With this proposal, the purpose is to reconcile two of the most emblematic legal precedents for freedom of the press by the U.S. Supreme Court: Branzburg and Bartnicki.

Download the article from SSRN at the link.

June 12, 2020 | Permalink

Wednesday, June 10, 2020

Garon on a Conceptual Framework of Entertainment Law for the Twenty-First Century

Jon Garon, Shepard Broad College of Law, has published Towards a Conceptual Framework of Entertainment Law for the Twenty-First Century. Here is the abstract.

Throughout the history of entertainment, there have been only three goals of the state’s regulatory focus: health and safety concerns; content and cultural control; and monopoly power restrictions on those who control the media. The first has been to require health and safety standards comparable to businesses of all industries. It is the second and third goals of government regulation that make the entertainment industry stand apart. The second goal reflects the continuing state interest in managing the national culture first introduce through laws regulating theatrical players and the printing press. The third goal reflects the state’s interest in assuring that the individual and corporate influences on the media and culture do not grow too powerful. Governments use competition and antitrust laws to regulate the economic power and anti-competitive practices of the media empires. The technological innovations in computing and mobile devices provide for dramatically different solutions to monetize the digital marketplace and shape the culture of the society. The twenty-first century media streamers in film, television, music, and print will be very different from their counterparts from the previous decades. And just as the technology for delivery has changed, so have the powers of the U.S. government to control the content and manage the competition among the industry leaders. What has stayed the same is the innovative spirit that began with Gutenberg and fueled the invention of the camera, movie projector, phonograph, radio, and television. It informed the growth of the computer, the PC, the Internet, and the modern streaming services. At each stage, the media’s power to entertain, educate, persuade, and shape has remained unchallenged. Technology and culture are at a tipping point, just as they were when piracy triggered the end of the Stationers’ Company and the development of copyright law or the end of the Motion Picture Patents Company and the rapid growth of the motion picture industry. The printing press, the theatrical performance, the motion picture, and the TV show illustrate again and again that the medium is the message. From the middle ages forward, governments and society has learned to accept the relinquishment of control over the media and the power of the media companies to shape culture. In the coming years, those who best understand the implications of streaming, mobile devices, and new technologies will lead in its development. This article provides a conceptual framework to approach entertainment and the regulation of entertainment — entertainment law — from its historical origins and normative objectives. In most cases, these efforts apply at the margins because culture is simply too powerful a force to do more. Nonetheless, an understanding of the implications for entertainment law regulation will help the producers, regulators, and consumers of entertainment to understand the power of entertainment law and the foreseeable development of the law in the early twenty-first century.

Download the article from SSRN at the link.

June 10, 2020 | Permalink

Friday, June 5, 2020

Conklin on How the Truth Can Be Deceiving: The Way Criminal Justice Headlines Are Misinterpreted @AngeloState

Michael Conklin, Angelo State University, is publishing The Truth Can Be Deceiving: How Criminal Justice Headlines Are Misinterpreted in Ne. U. Extra Legal (March 21, 2020). Here is the abstract.

Just as the criminal justice system has a profound effect on those involved, media accounts of the criminal justice system can profoundly affect those reported on. It is important for those in the media to not only report accurately criminal justice matters, but also to be aware of how factually accurate reports can be misunderstood by lay audiences and the resulting consequences these misunderstandings can have. The purpose of this study is to examine how various newspaper headlines regarding the criminal justice system are commonly interpreted. In doing so, journalists are provided valuable information to guide them in determining what report on, and how to best craft headlines. Additionally, journalistic resources, such as the Society of Professional Journalists Code of Ethics, are examined for their lack of guidance provided.

Download the article from SSRN at the link.

June 5, 2020 | Permalink

Wednesday, June 3, 2020

Center for Democracy and Technology Sues Over Social Media Executive Order

The Center for Democracy and Technology has filed a lawsuit against Donald Trump over his recently issued Executive Order, which attempts to limit the activities of social media platforms. Here is a link to the complaint. 

More here from the National Law Journal, here from NPR. 

June 3, 2020 | Permalink

Tuesday, June 2, 2020

Schauer on Free Speech Overrides @uvalaw

Frederick Schauer, University of Virginia School of Law, is publishing Free Speech Overrides in the University of Chicago Legal Forum (2020). Here is the abstract.

This paper, prepared for a University of Chicago Law School symposium on “What’s the Harm? The Future of the First Amendment,” on October 25, 2019, seeks to analyze the circumstances under which even speech admittedly covered by the First Amendment may be justifiably restricted, and the First Amendment thus justifiably overridden. This is the idea implicit in Holmes’s notion of a “clear and present danger” of a century ago, but that idea persists. Although “clear and present danger” has been superseded by the test in Brandenburg v. Ohio for speech advocating illegality, clear and present danger still remains part of the doctrinal architecture of the First Amendment in numerous other contexts, most saliently these days with respect to the circumstances in which speakers may be restricted because of the dangers ensuing from the presence of a hostile audience. After exploring the doctrinal status of clear and present danger in the hundred years since Schenck, the article concludes with some tentative thoughts about the puzzle of compensation for those who free speech rights are justifiably overridden. If those whose property rights are justifiably taken for the public good are entitled to compensation under so-called takings doctrine, then should those whose free speech rights are also justifiably taken for the public good be similarly entitled to compensation or other redress?

Download the paper from SSRN at the link.

June 2, 2020 | Permalink