Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, February 5, 2024

Lidsky on Untangling Defamation Law: Guideposts for Reform @UFLaw @MoLRev

Lyrissa Barnett Lydsky, University of Florida College of Law, is publishing Untangling Defamation Law: Guideposts for Reform in volume 88 of the Missouri Law Review. Here is the abstract.

This article, which is based on a keynote address given at the 2023 Missouri Law Review Symposium, addresses the past and predicted future of defamation law in hopes of galvanizing needed reforms. As a necessary backdrop, this article explains why today’s defamation law remains so complex, tracks reforms over the last half-century, and explains why the common law of defamation has not adapted adequately to the challenges posed by cheap speech in the digital era. The article then turns to assessing the complaints of defamation law’s most prominent would-be reformers and finds them to rest on an incomplete understanding of how defamation law’s complex pieces contribute to the whole. Finally, after identifying some important barriers to defamation law reform, the article provides guideposts for the reform process.

Download the article from SSRN at the link.

February 5, 2024 | Permalink

Smith on the Criminally Complicated Copyright Questions About Trump's Mugshot @CathaySmith @UMontanaLaw @StanLRev

Cathay Smith, University of Montana School of Law, is publishing The Criminally Complicated Copyright Questions About Trump's Mugshot in volme 76 of the Stanford Law Review Online. Here is the abstract.

Former-President Donald Trump surrendered at the Fulton County jail in Georgia on August 24, 2023, where he was booked on 13 felony counts and photographed for a mugshot. The mugshot shows Trump dressed in a navy-blue suit jacket, white shirt, and red tie. His face is slightly angled to one side, his chin tucked, his mouth pouting, and his eyes glaring at the camera. Trump’s mugshot went viral on social media and news outlets, and began to appear on merchandise for sale, such as mugs, t-shirts, hats, and even toilet paper rolls. Trump’s own campaign started using the mugshot on campaign merchandise for sale, often with the words “Never Surrender” or “2024” next to the image. His campaign also publicly threatened to “come after” any third-parties that use the mugshot without authorization. But who owns Trump’s mugshot under copyright law? And who can use the mugshot? This essay answers those questions and, in the process, explores complicated copyright concepts of authorship, originality, government edicts, free speech, and fair use.

Download the essay from SSRN at the link.

February 5, 2024 | Permalink

Monday, January 29, 2024

Burnworth on Section Three's Chilling Efect on Free Speech @UMassAmherst

Justin Burnworth, University of Massachusetts, Amherst, has published Section Three’s Chilling Effect on Free Speech. Here is the abstract.

Professors William Baude and Michael Paulsen recently announced their article, The Sweep and Force of Section Three, arguing that Section Three of the Fourteenth Amendment disqualifies former President Donald Trump from holding office given his participation in the attempted overthrowing of the 2020 presidential election. The scholars briefly acknowledge the inevitable clash between Section Three and the First Amendment but dismiss the issue as either “satisfied” under modern liberal free speech doctrine or in the case of actual conflict they argue that “free speech principles must give away.” While the article is undoubtedly one of the most vital pieces of legal scholarship written in recent memory—the general apathy towards free speech principles as an integral core protection of the Constitution is troubling. This article sets forth the potential clashes between free speech principles and Section Three. It argues that the principles cannot simply “give away” for every Section Three claim of disqualification. First, the proper way to understand the First Amendment and Section Three is that the former limits the scope of latter. The passage of Section Three did not strip away the free speech principles enshrined in the First Amendment. Second, individual rights guaranteed in the Constitution must take a preferred position to governmental powers when the two clash. If an individual right can be indirectly usurped by a later governmental power, it renders the entire process of protecting rights superfluous. Third, the United States has a history and tradition of the political majority restricting the free speech of the political minority if given the opportunity to do so. The fear of a politically motivated abuse of Section Three disqualification justifies ensuring that such a powerful tool does not go unchecked. Modern free speech doctrine is the proper instrument to ensure that no elected official is disqualified from office simply because they critique the policy preferences of those in power—a foundation that a healthy democracy is built on. Fourth, the Supreme Court ruled that elected officials enjoy the same free speech protections of that of a private citizen. Therefore, a Section Three claim that an elected official “engaged” in insurrection—through their speech—must first adhere to the Brandenburg standard to determine whether the inflammatory speech was likely to incite imminent lawless action and is therefore not protected under the First Amendment. Lastly, while the courts have yet to directly adopt the Baude and Paulsen argument, indirectly, they have subverted the First Amendment by misapplying the Brandenburg rule. Both the District Court in Colorado and the Supreme Court of Colorado utilized a backwards-looking approach to understand the context of Trump’s speech. While this approach is appropriate in other areas of speech—such as true threats—it violates the imminence requirement in incitement cases and has never been used by the Supreme Court in any case when it applied Brandenburg.

Download the article from SSRN at the link.

January 29, 2024 | Permalink

Thursday, January 18, 2024

Smith on Whether Editing Classic Books Is a Threat to the Public Domain @CathaySmith @umontanalaw @VirginiaLawRev

Cathay Smith, University of Montana School of Law, is publishing Editing Classic Books: A Threat to the Public Domain? in volume 110 of the Virginia Law Review Online. Here is the abstract.

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain copyright protection by adding sufficient original expression to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because derivative works can foster creativity, disseminate culture and knowledge, and allow original works to reach new audiences. However, this right can also be misused and misapplied. Specifically, while copyright in derivative works only extends to the new materials added to an underlying work, there are instances where overreaching copyright claims and ambiguous lines between the original work and the derivative work can have the practical effect of extending exclusive rights in the original underlying works. This Essay examines editors that have claimed copyright in new illustrations or new editions of classic books, and considers the potential to create copyrightable derivative works when editors revise and publish new editions of classic books that remove cultural, ethnic, and gender stereotypes. It argues that copyright law must strike a balance to ensure follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern audience and readership, but it must also guard against the inadvertent consequence of diminishing the public domain of classic books.

Download the article from SSRN at the link.

January 18, 2024 | Permalink

Monday, January 8, 2024

Seshadri on the Press Council of India Act @sjclblr

Supraja Seshadri, St. Joseph's College of Law, has published Press Council of India Act. Here is the abstract.

Media houses in India have held a place of importance since time immemorial. The relevance of it may have been noticed in recent history, but it always played an important. The media is considered to be the fourth pillar of the Constitution after the Legislative, Executive and Judiciary. For a profession that has gained much momentum in recent years, it is necessary to keep a check on the powers and functions of such professionals in this field. Regulation is necessary as it ensures a smooth flow of business and acts as a deterrent at the same time. Deterrence, by means of punitive measures and smooth flow by means of code of conduct, rules of business, setting up for various committees and commissions, etc. This Act was legalised in the year 1978, right after the 1975-77 emergency. That emergency can be considered as a foundation stone for today’s provisions as seen under this Act. It is necessary to understand that the rights enshrined in our Constitution are not absolute and that they may be curbed in times of need. How can they be curbed and if curbed, what is the legal machinery used to regulate it? This article aims to answer this question by explaining in detail about this Act. To understand this Act, a brief travel in history is essential. This Article will walk the reader through the brief history of media, and media in India and touch up on the emergency times and what led to the present provision. This Act also aims to give the reader an understanding of the exhaustive chapters in this Act.

Download the article from SSRN at the link.

January 8, 2024 | Permalink

Hanley on America's Fourth Estate: History and Law @danielahanley @openmarkets

Daniel Hanley, Center for Journalism and Liberty, has published America’s Fourth Estate: History and Law.

Here is the abstract.

This Article details the extensive history of federal media regulation in the United States. Examining historic media regulation helps us see what robust public policy is possible and makes clear that, like all markets, the media industry is constructed by the state, and the practices that corporations use to compete and how they compete are constructed from the law. Critically, this Article illuminates that antimonopoly has been a fundamental aspect of much of the federal regulation since the founding of the United States and that such policies were meant to support and structure the news industry in the public interest, specifically to foster a news industry that is deconcentrated, capable of providing diverse opinions, able to hold the government and other powerful actors accountable to the rule of law, and maintain as wide a distribution system as possible so that the public can access information.

Download the article from SSRN at the link.

January 8, 2024 | Permalink

Saturday, December 23, 2023

Smith on Editing Classic Books: A Threat to the Public Domain? @CathaySmith @umontanalaw

Cathay Smith, University of Montana School of Law, is publishing Editing Classic Books: A Threat to the Public Domain? in volume 109 of the Virginia Law Review Online. Here is the abstract.

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain copyright protection by adding sufficient original expression to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because derivative works can foster creativity, disseminate culture and knowledge, and allow original works to reach new audiences. However, this right can also be misused and misapplied. Specifically, while in derivative works only extends to the new materials added to an underlying work, there are instances where overreaching copyright claims and ambiguous lines between the original work and the derivative work can have the practical effect of extending exclusive rights in the original underlying works. This Essay examines editors that have claimed copyright in new illustrations or new editions of classic books, and considers the potential to create copyrightable derivative works when editors revise and publish new editions of classic books that remove cultural, ethnic, and gender stereotypes. It argues that copyright law must strike a balance to ensure follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern audience and readership, but it must also guard against the inadvertent consequence of diminishing the public domain of classic books.

Download the article from SSRN at the link.

December 23, 2023 | Permalink

Monday, December 11, 2023

Wright on Slightly More Than Two Cheers For Sneaky Private Investigations Into Questionable Business Operations

R. George Wright, Indiana University McKinney School of Law, has published Slightly More Than Two Cheers For Sneaky Private Investigations Into Questionable Business Operations. Here is the abstract.

Journalists and interest groups often investigate, more or less clandestinely, the business practices of a particular corporate enterprise. Their aim in doing so is to document and graphically publicize illegal or controversial such practices. How the criminal and civil law should respond to such undercover investigations is the focus of the inquiry below. Ultimately, three full-throated cheers for such private-party investigations is excessive. The investigations in question may, in some cases, run up against, merely for example, limits set by valuable personal privacy rights. A mere two cheers response, however, is insufficient. The free speech-related and other public interest value of such investigations is collectively too great for only two cheers. Two and a half cheers may then seem an apt accommodation of the conflicting interests at stake. Herein, though, a slight muting of the two and a half cheers is endorsed. This final adjustment is strategically intended to encourage investigators to minimize any unnecessary harms caused by their valuable investigation and reporting in the public interest.

Download the article from SSRN at the link.

December 11, 2023 | Permalink

Antoniou on The MeToo Movement and the Public Interest Defence in Libel @alexkantoniou @Uni_of_Essex

Alexandros Antoniou, Universty of Essex School of Law, is publisng The MeToo Movement and the Public Interest Defense in Libel</a in volume 34 of the Entertainment Law Review. Here is the abstract.

The article examines the first reported case in which an individual who was sexually assaulted and named their perpetrator successfully relied on the defence of public interest under section 4 of the Defamation Act 2013. The analysis explores the significance of this rare ruling for survivors of sexual abuse against the backdrop of the MeToo movement, considers its limitations and spotlights the financial challenges that sexual assault victims may face when defending defamation actions.

Download the essay from SSRN at the link.

December 11, 2023 | Permalink

Tuesday, November 21, 2023

Yoo on What's In a Name? Common Carriers, Social Media, and the First Amendment @pennlaw

CHristopher S. Yoo, University of Pennsylvania Law School, is publishing What’s In a Name?: Common Carriage, Social Media, and the First Amendment in volume 118 of the Norhwestern University Law Review Online. Here is the abstract.

Courts and legislatures have suggested that classifying social media as common carriers would make restrictions on their right to exclude users more constitutionally permissible under the First Amendment. A review of the relevant statutory definitions reveals that the statutes provide no support for classifying social media as common carriers. Moreover, the fact that a legislature may apply a label to a particular actor plays no significant role in the constitutional analysis. A further review of the elements of the common law definition of common carrier reveals that four of the purported criteria (whether the industry is affected with a public interest, whether the social media companies possess monopoly power, whether they are involved in the transportation and communication industries, and whether social media companies received compensating benefits) do not apply to social media and do not affect the application of the First Amendment. The only legitimate common law basis (whether an actor holds itself out as serving all members of the public without engaging in individualized bargaining) would again seem inapplicable to social media and have little bearing on the First Amendment. The weakness of these arguments suggests that advocates for limiting social media’s freedom to decide which voices to carry are attempting to gain some vague benefit from associating their efforts with common carriage’s supposed historical pedigree to avoid having to undertake the case-specific analysis demanded by the First Amendment’s established principles.

Download the article from SSRN at the link.

November 21, 2023 | Permalink

Saturday, October 28, 2023

Post on Public Accommodations and the First Amendment: 303 Creative and "Pure Speech" @YaleLawSch

Robert Post, Yale Law School, has published Public Accommodations and the First Amendment: 303 Creative and "Pure Speech." Here is the abstract.

In the recent case of 303 Creative v. Elenis, the Court held that the First Amendment precludes the application of a Colorado public accommodations statute to a potential designer of wedding websites (Lorie Smith) who proactively objected to working for clients involved in same-sex weddings. At stake in the opinion is the important question of how antidiscrimination statutes can be reconciled with the First Amendment. Gorsuch structured his opinion for the Court on the basis of a simple syllogism. The major premise of the syllogism is that the Smith’s websites would be “pure speech”; the minor premise is that the First Amendment forbids the compulsion of “pure speech.” The conclusion is that Colorado could not apply an antidiscrimination statute to compel Smith to work for clients who would require her to produce websites that she would rather not construct. Although “pure speech” is not a well-defined First Amendment concept, Gorsuch seeks to establish the major premise of his syllogism on the basis of stipulations to which the parties in 303 Creative agreed. These stipulations are both tendentious and extensive, taken almost verbatim from Smith’s complaint. The article closely examines these stipulations to show that in 303 Creative Gorsuch defines “pure speech” to consist of bespoke words, images or symbols that are designed to communicate and that reflect a vendor’s own speech. It argues that, absent the parties’ stipulations, Smith’s websites likely should not have been characterized as this kind of pure speech. The article then examines the minor premise of the 303 Creative syllogism. It shows that (1) The premise inaccurately summarizes First Amendment doctrine; (2) The premise effectively undermines all public accommodation laws, which can be enforced only if vendors are required to offer equal treatment to customers regardless of race, sex or sexual orientation. This requirement will inevitably compel vendors to engage in “pure speech”; (3) Pure speech is routinely compelled if it is commercial speech; (4) Pure speech cannot be compelled if it is public discourse; and (5) 303 Creative should thus have turned on the question of whether Smith’s websites are properly characterized as commercial speech or as public discourse. As written, 303 Creative is so abstract and overreaching that it will empower lower courts to mutilate public accommodations laws at will. The likely outcome is that 303 Creative will be erratically applied in ways that reflect the antecedent political ideology of courts. The Supreme Court itself exemplified this problem by not applying the reasoning of 303 Creative to its own decision in Students for Fair Admissions (“SFA”) v. President and Fellows of Harvard, where it used an antidiscrimination statute (Title VI) to alter educational messages that an expressive association (Harvard University) sought to communicate. Much of the confusion of 303 Creative likely stems from the Court’s implicit transfer of concepts applicable to Free Exercise claims to the distinct and inappropriate context of free speech jurisprudence.

Download the article from SSRN at the link.

October 28, 2023 | Permalink

Monday, October 23, 2023

Knight Institute: Call For Papers: New Voices In Press Freedom @knightcolumbia

From the Knight Institute: A Call For Papers: New Voices In Press Freedom

The Knight Institute invites submissions from junior scholars exploring the news in changing times.

 

The Knight First Amendment Institute at Columbia University seeks proposed papers from junior scholars on the themes of its 2023-24 project, The Future of Press Freedom: Democracy, Law, and the News in Changing Times. These papers will be featured at a symposium of the same name at Columbia University on May 2-3, 2024.

The project, piloted by Senior Visiting Research Scholars RonNell Andersen Jones and Sonja R. West, aims for the first time to explore in real depth what the Constitution, law, and policy can do about identifying and protecting core press functions. It will examine the role of a free and protected press in preserving a healthy American democracy, debate the benefits and disadvantages of special doctrinal protection for performers of press functions, consider the place that protection for newsgatherers holds in the Supreme Court’s evolving First Amendment frameworks, and seek to develop functional doctrines that can protect performers of these roles as new methods for producing and consuming news emerge.

This Call is open only to junior scholars. Authors who are tenured or tenure-track in any discipline at a college or university, and have not been teaching at either of those ranks for a total of more than seven years, are eligible. We will accept jointly authored submissions, but each of the coauthors must be individually eligible to participate in the Call. There is no limit on the number of submissions by an individual author.

Interested junior scholars should send a 250-word abstract and a current CV to [email protected] by December 1, 2023. The abstract should describe the central claim of the paper and identify the main arguments in support of that claim. Proposed papers must be new to this project and not previously published in any form. We intend to review all of the abstracts by the end of November, with the goal of commissioning up to four papers of 10,000-12,000 words. The selected papers will be published alongside the work of major legal and communications scholars in an online series hosted by the Knight Institute and will ultimately appear in an anticipated edited volume published by Cambridge University Press. Selected authors will present their papers as part of a symposium panel.

First drafts will be due April 5, 2024.  These drafts will also be circulated to all participants in advance of the symposium, which will take place on May 2-3, 2024 at Columbia University. Final submissions will be due July 1, 2024.

Each author will receive an honorarium of $6,000 (divided evenly among co-authors if needed).

Questions that might be explored in submissions include, but are not limited to, the following:

The benefits and disadvantages of doctrinal press-function exceptionalismWhat are the pros and cons of targeted statutory and constitutional protection of the press functions? Legislatures and courts have tussled in the past with the question of whether speakers and publishers performing a press function need to have legal protections beyond those available to all speakers. As local journalism fades and reporters increasingly come under attack, are there stronger reasons to consider granting journalists privileges that other speakers do not possess? As the news ecosystem changes, how can we guarantee access for some parties to perform government oversight (for example, the right for public-serving newsgatherers to remain on a scene despite dispersal orders at protests or after curfews during pandemics, or the right to access jails or border detention facilities otherwise closed to the public)? What losses to accountability and transparency come from doctrinal homogeneity without any press exceptionalism, and what risks come from carving out special treatment? Some have shied away from the question because of the difficulty of defining “the press,” but can a new focus on press functions provide clarity?

Identifying performers of the press functionHow do we identify which functions qualify as press functions? How, if at all, can we shape doctrine and legal policies that grant rights to those acting as proxies for the public without privileging the powerful over the weak? How can we specially protect performers of the press function without ratcheting the levers of authoritarianism by granting power to the government to decide who is privileged? If this line-drawing occurs, what are the best tools for distinguishing performers of the press function from performers of other functions? What protections might be constitutional necessities for fulfilling the wider purpose of the First Amendment guarantee of freedom of the press, and how can we guarantee that this protection exists in the future, even if media models change?

The role of a free and protected press in a healthy democracyWhat specific press functions does a democracy need in order to sustain itself? What are the interrelationships between the fragility of the local news ecosystem and the fragility of American democracy? Is it important to have shared processes for finding truth and common shapers of public conversations? Must a healthy democracy have trans-partisan neutral gatekeepers of the sort that predominated the media in the mid-to-late twentieth century, or does history suggest that a partisan press can combat government secrecy and corruption, provide transparency, and guide healthy, fact-based public discourse? How do the concerns about waning trust in the press parallel concerns about the distrust of other democratic and knowledge institutions and the risks facing those institutions? Given the deep divisions on questions of press trustworthiness, how can we foster newsgathering that is vital to civic health, and what is the proper role of constitutionalism, law, and policy in this space? Are the rights exercised by performers of the press function best viewed as press rights or should they be seen as exercises of the wider collective rights of the citizenry? How do principles of listener rights and debates over trusted information-gathering surrogates illuminate the ways that law and policy should protect press actors? How can press-function protections best be crafted to serve the needs of real information consumers and citizens in a democracy?

Press-function protection and the Supreme Court’s evolving First Amendment frameworksAs a practical matter, how do these conversations situate themselves within broader First Amendment doctrine at a time when the U.S. Supreme Court has been First Amendment-expansive but not press-positive? Has press protection fallen outside the wider First Amendment capaciousness of the Roberts Court, and how might it be conceptualized to tap into that Court’s otherwise aggressively libertarian expressive-freedom agenda? Doctrinally, how do structural changes in the power dynamics between the press and the government alter the assumptions on which the Court’s old media-law cases rest, and does the waning ability of the press to engage in self-protection require more aggressive protection for the press function? Twentieth-century First Amendment doctrine presupposes the existence of a legacy media that has power—in the form of audience reach, financial resources, political clout, and governmental reliance on the press for public messaging. If these facts have changed, should cases declining to read the Constitution to positively protect the press function be reconsidered?

 

Read the Call here.

October 23, 2023 | Permalink

Friday, October 20, 2023

Hill on History's Speech Acts @CWRU_Law @IowaLawReview

B. Jessie Hill, Case Western Reserve University School of Law, has published History's Speech Acts at 108 Iowa Law Review 2215 (2023). Here is the abstract.

This Essay considers the historic relationship between symbolic public expressions of racial and religious identity—in particular, Confederate symbols and Christian religious displays. These displays sometimes comprise shared symbology, and the adoption of this symbology overlaps at distinct moments in U.S. history in which Confederate and Christian symbolism converged to express messages of combined religious and racial superiority. This Essay argues that these forms of expression can best be understood as “speech acts” that seek to construct a particular social reality, often in defiance of political and social fact. They thus not only express but also enact social hierarchies. It further argues that the Supreme Court’s most recent opinions dealing with the constitutionality of religious displays continue this social and political project of constructing a white Christian identity.

Download the essay from SSRN at the link.

October 20, 2023 | Permalink

New Publication: Global Perspectives on Press Regulation: Volume 1: Europe (Hart/Bloomsbury) @hartpublishing

New from Hart Publishing:

Global Perspectives on Press Regulation, Volume 1: Europe.

Discount offer from the publisher here.

 

Sep 2023   |   9781509950348   |   296pp   |   Hbk   |    RRP: £90

Discount Price: £72

Order online at www.bloomsbury.com  – use the code GLR AQ7 to get 20% off!

Sign up to our email list to receive updates about our new titles.

Sep 2023   |   9781509950348   |   296pp   |   Hbk   |    RRP: £90

October 20, 2023 | Permalink

Smith on Moral Panic and the First Amendment @msmith750 @StMarys_Law @buffalolawrev

Michael L. Smith, St. Mary's University School of Law, is publishing Moral Panic and the First Amendment in volume 72 of the Buffalo Law Review. Here is the abstract.

Debates over free speech in the United States frequently see advocates of strong, broad protections at odds with those who argue that unfettered free speech tends to harm society’s most vulnerable. Free speech advocates frequently invoke the marketplace of ideas and argue that the antidote to false or harmful speech is more speech. In response, critics contend that speech itself causes harm and chills counter-speech—effectively excluding marginalized groups, including women and LGBTQ people, from discourse altogether. These critics advocate limitations on robust free speech doctrine targeting speech that harms marginalized communities. This Article identifies a significant wrinkle in this narrative: the problem of moral panics. The term “moral panic” originates in sociological literature and, simply stated, connotes disproportionate media and social condemnation of an identifiable deviant group or type of individual. I argue that moral panic influences modern lawmaking trends and identify two such trends in particular: panic over drag performers who purportedly groom and otherwise harm children, and panic over teachers and administrators who incorporate critical race theory into classrooms. Applying multiple models of moral panics, I argue that there is a strong case that laws restricting drag performance and teaching of critical race theory or other “divisive concepts” are frequently based in moral panic. Moral panic adds nuance to debates over the scope of First Amendment protections. To some extent, laws originating in moral panics vindicate critics of unfettered free speech, as the freedom to spread falsehoods (particularly those that are deemed of political salience) contributes to panic and fuels demand for panic-based restrictions. But when a moral panic’s influence goes so far as to prompt the enactment of restrictive laws, critics of strong speech protections may find a strong resource in the very doctrine they criticize. Laws restricting drag performances and critical race theory teaching are vulnerable to a variety of First Amendment challenges. Those who seek to reform permissive First Amendment doctrine therefore must account panic-generated laws and how strong speech protections may support challenges to these laws.

Download the article from SSRN at the link.

October 20, 2023 | Permalink

Friday, October 6, 2023

Preminger and Kugler on How the Right of Publicity Can Save Actors From Deepfake Arnageddon @MBKugler @NorthwesternLaw @BerkeleyTechLJ

Alice Preminger and Matthew B. Kugler, both of the Northwestern School of Law, are publishing The Right of Publicity Can Save Actors from Deepfake Armageddon in the Berkeley Technology Law Journal. Here is the abstract.

The entertainment industry is being rocked by the potential of deepfakes. It is now possible to have dead actors star in new productions, to revise casting choices months after filming, and to simulate extras electronically. The law has not caught up with this technological revolution. This Article traces the ways in which right of publicity law struggles to control this new form of identity exploitation. Specifically, it examines how traditional protections for expressive uses – key for allowing the depiction of real-world figures in biopics and historical dramas – are too broad when applied to digital replicas like deepfakes. A deepfake of a performer can appear to be the performer in a way that no 1990s CGI or makeup-enhanced stunt double possibly could, potentially serving as direct competition for them or deceiving audiences. This Article proposes changes to how right of publicity law treats expressive uses and also considers the problems raised current right of publicity licenses and the overbroad terms they regularly contain. In the past, the problems created by these broad licensing terms were limited by technology – one could only do so much with the film available. But now new canons of interpretation are needed to prevent the contracts being used to justify uses beyond what the contracting parties could have imagined.

Download the article from SSRN at the link.

October 6, 2023 | Permalink

Thursday, October 5, 2023

Lidsky on Cheap Speech and the Gordian Knot of Reform @JournalSpeech

Lyrissa Barnett Lidsky, University of Florida College of Law, has published Cheap Speech and the Gordian Knot of Defamation Reform at 3 J. of Free Speech L. 79 (2023). Here is the abstract.

Dean John Wade, who replaced the great torts scholar William Prosser on the Restatement (Second) of Torts, put the finishing touches on the defamation sections in 1977. Apple Computer had been founded a year before, and Microsoft two, but relatively few people owned computers yet. The 24-hour news cycle was not yet a thing, and most Americans still trusted the press. Note: This is an Accepted Manuscript of an article published in the Journal of Free Speech Law originally available online at: https://www.journaloffreespeechlaw.org/lidsky.pdf

Download the article from SSRN at the link.

October 5, 2023 | Permalink

Faisal on Journalistic Exemption in the Context of Criminal Conviction and Offenses Data Under the European Data Protection Laws @helsinkiuni

Kamrul Faisal, University of Helsinki, Journalistic Exemption in the Context of Criminal Conviction and Offenses Data Under the European Data Protection Laws. Here is the abstract.

News portals, social media, and other forums often publish criminal conviction and offenses information that may include personal information related to social position, work history, education, family data, etc. about individuals. Communicating information to the public is important for forming public opinions in every democracy, which is protected by the right to freedom of expression (RtFE). Nevertheless, such information may cause unlawful privacy harms to the data subjects, e.g. it may serve as an open-source intelligence that might lead to discrimination in getting a job and insurance, damaging the reputation, etc. In such situations, the Member States must be able to balance the privacy and publicity rights in question. While exercising the discretion of balancing, Member States provided exemptions differently, which led to the disharmonization of the European data protection laws.This paper aims to outline a harmonized balancing model between two competing fundamental human rights — the right to protect personal data (RtPPD) and the RtFE in the context of criminal conviction and offenses data. Article 85 of the General Data Protection Regulation (GDPR) allows the processing of such data for journalistic purposes until it is barred by data subjects’ privacy rights.This study found a harmonized approach to reconciling/balancing both rights within the European data protection laws. This study, first, identified that any processing purpose may qualify as journalistic purposes if that serves the general interest of the public, and the processing is strictly necessary. Second, this study outlined a model that can be used to harmonize the reconciling mechanism.

Download the article from SSRN at the link.

October 5, 2023 | Permalink

Monday, September 25, 2023

New Publication: Emma Perot, Commercialising Celebrity Persona: Intellectual Property Law and Practice (Bloomsbury, 2023) @hartpublishing

Newly published: Emma Perot, University of the West Indies, has published Commercialising Celebrity Persona: Intellectual Property Law and Practice (Bloomsbury/Hart, 2023). Here from the publisher's website is a description of the book's contents.

This book investigates the commercialisation of celebrity persona in the UK, New York, and California. Interviews with 68 practitioners across the advertising, merchandising, film, and video game industries provide insight on the differences in approaches across jurisdictions, as well as the similarities caused by non-legal factors. Furthermore, the book addresses the developments in technology, social media, and social norms that have made collaboration attractive to maintain favour with fans. Anyone who is interested in the multi-million dollar business of celebrities as assets will benefit from this book.

Discount Price: £68 Order online at www.bloomsbury.com – use the code GLR AQ7 to get 20% off.

September 25, 2023 | Permalink

Monday, September 18, 2023

Garon on An AI's Picture Painting a Thousand Lies: Designating Responsibility for Visual Libel @GaronDigital @NSULawCollege @JournalSpeech

Jon Garon, Shepard Broad Law Center, has published An AI’s Picture Paints a Thousand Lies: Designating Responsibility for Visual Libel at 3 Journal of Free Speech Law 425 (2023). Here is the abstract.

The visual depictions possible through various generative AI systems have advanced far past the point where a casual observer can determine whether an image is real or synthetic. Synthetic, fake videos have been used for disinformation in the Russian war against Ukraine, to produce countless instances of revenge pornography, to create artificial news anchors in South Korea, and to generate fictional social media influencers. These tools have both compelling commercial applications and potential for significant weaponization. Combined with the tendency of some generative AI systems to hallucinate or produce false information the AI claims to be accurate, the concerns over potentially libelous and harmful visual content will only grow. This article focuses on responsibility and liability for libelous publication of generative synthetic media. The article explores the legal consequences when an AI system itself generates false and harmful images to determine which parties, if any, would be liable for the damage caused by such publication. By providing this framework, the article also identifies the steps parties involved in the AI content production chain can take to protect individuals from the misuse of these systems.

Download the article from SSRN at the link.

September 18, 2023 | Permalink