Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, April 21, 2021

Freedom Forum Position: First Amendment Specialist

The Freedom Forum is accepting applications for its First Amendment specialist position.  The position is full-time. More information available from the website here.

April 21, 2021 | Permalink

Cantu and Jussim on Microaggressions, Questionable Science, and Free Speech @UMKCLaw @PsychRabble @RutgersU

Edward Cantu, University of Missouri, Kansas City, and Lee Jussim, Rutgers University, are publishing Microaggressions, Questionable Science, and Free Speech in the Texas Review of Law & Politics. Here is the abstract.

The topic of microaggressions is hot currently. Diversity administrators regularly propagate lists of alleged microaggressions and express confidence that listed items reflect what some psychologists claim they do: racism that is, at the very least, unconscious in the mind of the speaker. Legal academics are increasingly leveraging microaggression research in theorizing law and proposing legal change. But how scientifically legitimate are claims by some psychologists about what acts constitute microaggressions? The authors—one a law professor, the other a psychologist—argue that the answer is “not much.” In this article, the authors dissect the studies, and critique the claims, of microaggression researchers. They then explore the ideological glue that seems to hold the current microaggression construct together, and that best explains its propagative success. They close by warning of the socially caustic and legally pernicious effects the current microaggression construct can cause if academics, administrators, and the broader culture continue to subscribe to it without healthy skepticism.

Download the article from SSRN at the link.

April 21, 2021 | Permalink

Tuesday, April 20, 2021

Ravid on Judging By the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing @ItayRavid @Villanova_Law

Itay Ravid, Villanova University School of Law; Stanford University School of Law, has published Judging by the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing at 93 S. Cal. L. Rev. 1121 (2020). Here is the abstract.

Does the mass media affect judicial decisionmaking? This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing. To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection. The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts. These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system. Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials. The Article concludes by suggesting methods for countering such media effects.

Download the article from SSRN at the link.

April 20, 2021 | Permalink

Smith on Weaponizing Copyright @CathaySmith @umontanalaw

Cathay Smith, University of Montana School of Law, is publishing Weaponizing Copyright in volume 35 of the Harvard Journal of Law & Technology. Here is the abstract.

Copyright grants authors exclusive rights in their works in order to encourage creation and dissemination of socially valuable works. It permits copyright owners to assert their copyright against violations of those rights when necessary to protect their market exclusivity and economic interests. Increasingly, however, copyright is being used by individuals to achieve other objectives. This Article examines the increasingly widespread phenomenon of individuals using copyright to vindicate noncopyright interests, which this Article refers to as “weaponizing copyright.” In some cases, copyright is weaponized to silence criticism and legitimate speech. In other instances, the objective is to erase facts and make information disappear. Some assertions of copyright are intended to punish or retaliate for some perceived wrongdoing. Other assertions of copyright involve attempts to protect the reputation and dignity of copyright owners. Another objective is to protect privacy in personal and intimate information. In none of these scenarios are copyright owners seeking to protect their legitimate market or economic interests in their copyrighted works, the intended purpose of copyright. Through exploring recent and high-profile instances of copyright weaponization involving Harvey Weinstein and Ronan Farrow, Pepe the Frog and InfoWars, Success Kid and Steve King, Navy SEALS and the Associate Press, PewDiePie, Dr. Dew, the McCloskeys, Netflix Films, Jehovah’s Witnesses, and others, this Article exposes the increasingly widespread practice of copyright weaponization. It explains how copyright became the weapon par excellence for individuals to punish, erase, suppress, protect, and vindicate noncopyright interests, and why individuals choose to weaponize copyright instead of pursuing claims under other laws. It also pushes back on the frequently accepted presumption that weaponizing copyright is always harmful and must be discouraged by exploring the power dynamics and blurry lines between weaponization by aggressors to punish, erase, suppress, and weaponization by the vulnerable to protect, preserve, and defend. Ultimately, this Article attempts to resolve two important questions: whether copyright should serve to protect some noncopyright interests but not others, and whether there is a fair and just way to manage the increasingly pervasive practice of copyright weaponization.

Download the article from SSRN at the link.

April 20, 2021 | Permalink

Monday, April 19, 2021

Leung on Publicity Stunts, Power Play, and Information Warfare in Mediatized Public Confessions @JHCLeung @law_humanities

Janny Leung, University of Hong Kong, Faculty of Arts, School of English, has published Publicity Stunts, Power Play, and Information Warfare in Mediatized Public Confessions at 11 Law and Humanities 82 (2021). Here is the abstract.

Confession has for centuries been known as the queen of evidence. This paper examines an unusual type of confessions – ones that are made in public and out of court, the main target audience of which is not legal enforcement or court officers but the generic public. Operating in the margins of law, these confessions may make legal procedures redundant. Through analysing three recent public confessions from different jurisdictions that are mediatized and spectacularized, this paper asks what these confessions communicate, what motivations states have in staging them and how such confessions may be understood in relation to the modern communication environment today. In particular, I highlight narrative inconsistencies in these confessions and consider whether they affect their communicative functions.
Download the article from SSRN at the link.

April 19, 2021 | Permalink

Langos and Babie on Social Media, Free Speech, and Religious Freedom @Adel_Law_School

Colette Langos and Paul T. Babie, both of the University of Adelaide School of Law, have published Social Media, Free Speech and Religious Freedom at 20 Rutgers Journal of Law and Religion 239 (2021). Here is the abstract.

Social media forms part of the fabric of 21st century global life. People the world over use it to disseminate any number of ideas, views, and anything else, ranging from the benign to the truly malign. One commentator even diagnoses its ubiquity as a disease, and prescribes remedies for individual users and society as a whole.

Download the article from SSRN at the link.

April 19, 2021 | Permalink

Wednesday, March 10, 2021

Cornell Law School Accepting Applications For Stanton Fellow For First Amendment Clinic @CornellLaw

Cornell Law School is accepting applications for a Stanton Fellow for its First Amendment Clinic.

The Fellow will, among other activities, manage ongoing cases and supervise the work of the students in the Clinic. This is a full-time position for a two-year term, with a flexible start date of July 1, 2021. Applications will be reviewed on a rolling basis, with priority given to early applicants. Please submit all application materials by March 30, 2021.

More information about the position is available here

March 10, 2021 | Permalink

Wednesday, March 3, 2021

Colella on A Look Back at the Clear and Present Danger of Free Speech During the First World War @PaceUniversity @NYLawJournal

Frank G. Colella, Pace University, has published A Look Back at the Clear and Present Danger of Free Speech during the First World War at 265 N.Y.L.J. 7 (Jan. 27, 2021). Here is the abstract.

Just over 100 years ago, in January 1919, the United State Supreme Court handed down a trilogy of First Amendment cases that affirmed convictions under the World War I Espionage Act. Most lawyers can recall Schenck v. United States from their first year Constitutional Law class because it introduced “clear and present danger” to our lexicon. Less remembered today, however, but significantly more high-profiled at the time, was Debs v. United States, which upheld the conviction of Eugene Debs, a prominent member of the Socialist Party and anti-war activist, under the newly-formulated “clear and present danger” test. The decisions upheld convictions of opponents to the United States’ participation in World War I and were all decided after the war had ended. While the Supreme Court played a role, with its narrow reading of the right to free speech during the war, the greater threat to individual liberty was posed by Congress and the administration of President Woodrow Wilson. Congress enacted the Espionage Act of 1917 and expanded its reach with the Sedition Act amendments of 1918. The Wilson administration used the “nebulous” wording of those statutes to selectively prosecute anti-war opponents – including those who merely advocated that the United State open “peace talks” with Germany.

Download the article from SSRN at the link.

March 3, 2021 | Permalink

Fordham Law Democracy Clinic Reports on Improving Communication with Public Officials on Social Media: Proposals for Protecting Social Media Users' First Amendment Rights @FordhamLawNYC

Fordham Law Democracy Clinic Reports has published Improving Communication with Public Officials on Social Media: Proposals for Protecting Social Media Users’ First Amendment Rights. Here is the abstract.

Government officials undermine a key platform for communication with the public when they block users or delete their comments on social media. Those actions also often run afoul of the First Amendment. To address a problem that exists at all levels of government, this report by Fordham Law School's Democracy Clinic recommends legislation that bans public officials using social media for official purposes from blocking users or deleting their comments, except when comments are unprotected by the First Amendment.

Download the report from SSRN at the link.

March 3, 2021 | Permalink

Sears on Algorithmic Speech and Freedom of Expression @AlanSears

Alan M. Sears, Center for Law and Digital Technologies (eLaw), Leiden Law School, Leiden University, is publishing Algorithmic Speech and Freedom of Expression in volume 53 of the Vanderbilt Journal of Transnational Law (2020). Here is the abstract.

Algorithms have become increasingly common, and with this development, so have algorithms that approximate human speech. This has introduced new issues with which courts and legislators will have to grapple. Courts in the United States have found that search engine results are a form of speech that is protected by the Constitution, and cases in Europe concerning liability for autocomplete suggestions have led to varied results. Beyond these instances, insight into how courts handle algorithmic speech are few and far between. By focusing on three categories of algorithmic speech, defined as curated production, interactive/responsive production, and semi-autonomous production, this Article analyzes these various forms of algorithmic speech within the international framework for freedom of expression. After a brief introduction of that framework and a look towards approaches to algorithmic speech in the United States, the Article then examines whether the creators or controllers of different forms of algorithms should be considered content providers or mere intermediaries, the determination of which ultimately has implications for liability, which is also explored. The Article then looks at possible interferences with algorithmic speech, and how such interferences may be examined under the three-part test-particular attention is paid to the balancing of rights and interests at play-in order to answer the question of the extent to which algorithmic speech is worthy of protection under international standards of freedom of expression. Finally, other relevant issues surrounding algorithmic speech are discussed that will have an impact going forward, many of which involve questions of policy and societal values that accompany granting algorithmic speech protection.

Download the article from SSRN at the link.

March 3, 2021 | Permalink

Friday, February 26, 2021

Sixth Circuit Upholds Lower Court in March For Life Tweet Lawsuit Including Kathy Griffin as Defendant

The Sixth Circuit has affirmed the ruling of a lower court dismissing complaints against two defendants for tweets about the 2019 March for Life rally. Plaintiffs who were Covington High School students and participants in the March sued Twitter users Sujana Chandrasekhar and Kathy Griffin for their tweeted comments about the students and their participation in the rally. The plaintiffs argued that Griffin "waived her personal jurisdiction defense by failing to assert it when her attorney filed the Appearance of Counsel, but also that the exercise of jurisdiction satisfied both the state longarm statute and the Constitution." The district court dismissed for lack of personal jurisdiction in the cases of both defendants.

On appeal, the plaintiffs argued that the ruling in Gerber v. Riordan required the Sixth Circuit to reverse the lower court, claiming that a notice of appearance of counsel causes the defendant to waive a personal jurisdiction defense. The Sixth Circuit clarified the ruling, writing, "Filing a notice of appearance does not, on its own, cause a defendant to waive her personal jurisdiction defense."

The case is Blessing v.Chandrasekhar.

February 26, 2021 | Permalink

Thursday, February 25, 2021

FCC Publishes Tentative Agenda For March 17th Open Meeting

The FCC has published the tentative agenda for its March 17th open meeting. Among the items the FCC plans to discuss at this point:

Improving the Emergency Alert System and Wireless Emergency Alerts

Consideration of Two National Security Matters (unidentified)

See the agenda here. 

February 25, 2021 | Permalink

Tuesday, February 23, 2021

Lidsky on Post, The Social Foundations of Defamation (1986) @lidskylidsky

Lyrissa Barnett Lidsky, University of Missouri School of Law, has published Post, Robert C., The Social Foundations of Defamation Law: Reputation and the Constitution, 74 Calif. L. Rev. 691 (1986) at 25 Comm. L. and Pol'y 491 (2020). Here is the abstract.

Robert Post published “The Social Foundations of Defamation Law” the month I graduated from high school in a remote and dusty West Texas oil field town. I encountered the article six years later while in law school at the University of Texas. By that time, I knew I wanted to be a scholar, having done a Fulbright at Cambridge to study medieval legal history and jurisprudence. But I felt, and still feel, that it was awfully presumptuous of me to assume the academy would want me. When I read Post’s article for the first time, I was searching for a role model and a way to integrate my interests in history, literature and legal philosophy with the exacting methods of analysis I was absorbing in law school. [This essay is published in 25 Comm. L. and Pol'y 491 2020].

Download the article from SSRN at the link.

February 23, 2021 | Permalink

Monday, February 22, 2021

Journal of Free Speech Law, New Faculty-Edited, Peer-Reviewed Journal, Seeks Submissions

An announcement of a new, peer-reviewed journal:

Journal of Free Speech Law

We are delighted to announce the founding of the Journal of Free Speech Law, a new faculty-edited law journal. The journal will publish in print as well as electronically; the first issue—a symposium on regulation of social media removal decisions—will come out in Summer 2021. (Many thanks to the Stanton Foundation for a generous multiyear grant that will allow all this to happen.)

Future articles will be selected by our editorial board, which currently consists of:

Prof. Jane Bambauer

Prof. Ashutosh Bhagwat

Judge Stephanos Bibas

Prof. Vincent Blasi

Judge José A. Cabranes

Prof. Clay Calvert

Dean Erwin Chemerinsky

Prof. Alan Chen

Justice Mariano-Florentino Cuéllar

Judge Douglas H. Ginsburg

Prof. Jamal Greene

Prof. Andrew Koppelman

Prof. Ronald J. Krotoszynski, Jr.

Prof. Toni Massaro

Prof. Michael McConnell

Prof. Helen Norton

Prof. Robert Post

Judge A. Raymond Randolph

Judge Neomi Rao

Prof. Jennifer Rothman

Judge Robert Sack

Prof. Frederick Schauer

Dean Rodney A. Smolla

Judge David R. Stras

Judge Jeffrey S. Sutton

Prof. Rebecca Tushnet

Prof. Eugene Volokh

Prof. James Weinstein

The executive editors will be Jane Bambauer, Ashutosh Bhagwat, and Eugene Volokh, and Eugene Volokh will also serve as the editor-in-chief. If you’re interested in seeing links to our articles, as well as the occasional other announcement, follow us on Twitter at @JournalSpeech.

We plan to publish:

  1. Articles that say something we don’t already know.
  2. Articles with all sorts of approaches: doctrinal, theoretical, historical, empirical, or otherwise.
  3. Articles dealing with speech, press, assembly, petition, or expression more broadly.
  4. Generally not articles purely focused on the Free Exercise Clause or Establishment Clause (which we leave to other publications, such as the Journal of Law & Religion), except if they also substantially discuss religious speech.
  5. Articles not just about the First Amendment, but also about state constitutional free speech provisions, federal and state statutes and regulations protecting or restricting speech, common-law rules protecting or restricting speech, and private organizations’ speech regulations.
  6. Articles about U.S. law, foreign law, comparative law, or international law.
  7. Both big, ambitious work and narrower material.
  8. Articles that are useful to the academy, to the bench, or to the bar (and if possible, to all three).
  9. Articles arguing for broader speech protection, narrower speech protection, or anything else.

We also plan to publish quickly, without interfering with the author’s style, voice, or perspective.

Our submission guidelines: You can submit to the journal via Scholastica, at https://‌

  1. As with many other faculty-edited journals, we require exclusive submission. Any article you submit to us must not be under consideration elsewhere.
  2. In exchange, we expect to give you an answer within two weeks.
  3. Instead of a cover letter, please submit at most one page (and preferably just a paragraph or two) explaining how your article is novel. If there is a particular way of showing that (e.g., it’s the first article to discuss how case X and doctrine Y interact), please let us know.
  4. Please submit articles single-spaced, in a proportionally spaced font.
  5. Please make sure that the Introduction quickly and clearly explains the main claims you are making.
  6. Please avoid extended background sections reciting familiar Supreme Court precedents or other well-known matters. We prefer articles that get right down to the novel material (if necessary, quickly explaining the necessary legal principles as they go).
  7. Each article should be as short as possible, and as long as necessary.
  8. Like everyone else, we like simple, clear, engaging writing.
  9. We are open to student-written work, and we evaluate it under the same standards applicable to work written by others.

If your article is accepted:

  1. We will give you whatever editing feedback we came up with as we were reviewing your article. We will generally not offer line editing.
  2. We will assign a starting page number, which you can use for future citations even before it is published, and we willbe prepared to immediatelypublish the article online and on Westlaw and likely Lexis, once the article is suitably revised and polished. (We will publish in print every several months, as enough articles are finished to form an issue.)
  3. We will defer to your authorial judgment on editing questions, except when we think accuracy or attention to counterarguments requires changes (in which case we will of course not make any changes without your approval).
  4. We expect authors who are professors at American law schools to have cite-checking and proofreading done by their own research assistants. If that is a hardship for you, please let us know.
  5. We will have the article proofread near the end of the publishing process, just to catch any remaining glitches.

February 22, 2021 | Permalink

Friday, February 12, 2021

Coghlan On Whether Freedom of Speech Laws Are Fit for Purpose in the Age of Cancel Culture @LCLCBA

Niall Coghlan, European University Institute; Lincoln's Inn, has published Are Our Laws on Freedom of Speech Fit for Purpose in the Age of 'Cancel Culture'?, the winner of the Jonathan Brock QC Memorial Prize Essay 2020. Here is the abstract.

Cancel culture is paradoxical. It is both a form of and threat to free speech. Consequently, law should neither absolutely protect nor absolutely suppress it. Rather, law’s primary role is to foster a culture that values free speech. The essay begins by outlining the nature of free speech (I) and cancel culture (II). It then addresses the chief difficulty raised by this question: how cancel culture fits within our free speech tradition (III). It finally proposes three legal reforms (IV).

Download the essay from SSRN at the link.

February 12, 2021 | Permalink

Thursday, January 28, 2021

Reporters Committee for Freedom of the Press Seeks Senior Staff Attorney @rcfp

From the RCFP:

The Reporters Committee for Freedom of the Press is currently seeking a Senior Staff Attorney to lead the organization's nationwide amicus practice. This full-time position, based in RCFP's Washington, D.C. office, provides a unique opportunity for an experienced attorney to spearhead a key legal programming area at the Reporters Committee, the country's leading legal nonprofit committed to defending the First Amendment and newsgathering rights of journalists.

RCFP encourages attorneys with at least seven years of legal experience, including significant appellate litigation experience, to consider applying. To learn more about this position, please click this link. RCFP is currently accepting applications and strongly encourages applicants of diverse backgrounds to apply.

January 28, 2021 | Permalink

Friday, January 22, 2021

Miller on Defending Free Speech @JMfreespeech

Judith P. Miller, University of Chicago Law School, has published Defending Speech Crimes on the University of Chicago Legal Forum, 2020. Here is the abstract.

The First Amendment is supposed to provide important protections against criminal prosecutions for speech crimes. In practice, however, those protections are inadequate: in a world of vanishing trials, criminal defendants lack meaningful opportunities to litigate often fact-bound First Amendment questions. Through the lens of prosecutions for false speech, this article proposes refocusing First Amendment protections in criminal cases on criminal procedure rather than substantive questions about what the First Amendment protects. It suggests two procedural reforms—revitalizing the indictment and unanimity requirements—to help make the First Amendment’s ostensible protections more of a reality for criminal defendants.

Download the article from SSRN at the link.

January 22, 2021 | Permalink

Tuesday, January 19, 2021

Fagan on Two-Sided Social Media and Bad Faith Political Speech @EDHEC_BSchool

Frank Fagan, EDHEC Business School, is publishing Two-Sided Social Media and Bad Faith Political Speech in volume 29 of Research in Law and Economics (2021). Here is the abstract.

The First Amendment affords protection to political speech on the basis of its high value. However, political speakers who make inflammatory statements on both sides of an issue do not advance political projects. An entity that purchases inflammatory social media advertising, for instance, both for and against gun control, and generates offsetting reactions, simply raises the level of discursive conflict. This actor may be identified as a bad faith political speaker through relatively objective criteria. One-sided content producers, by contrast, even if they utter falsehoods and inflame discourse, cannot be so easily branded. The Gertz court, and First Amendment doctrine in general, correctly views this challenge as better handled outside of the courtroom. The novelty presented here is that evidence of two-sided content production can curtail the need for discretion and potentially close the door to many errors in judgment. Classifying two-sided inflammatory speech as low-value is relatively easy to administer judicially, consistent with economic efficiency, and increases the political bargaining space by reducing discursive conflict. It also has the advantage of prohibiting egregious outside interference in an election without the need to identify the geographic origin of the disruption.

Download the article from SSRN at the link.

January 19, 2021 | Permalink

Hudson on The Fighting Words Doctrine: Alive and Well in the Lower Courts @DavidLHudsonJr1

David L. Hudson, Jr., Belmont University College of Law, is publishing Essay: The Fighting Words Doctrine: Alive and Well in the Lower Courts in volume 19 of the University of New Hampshire Law Review (2020). Here is the abstract.

The fighting words doctrine is alive and well in the lower courts. The first part of this article briefly explains how the fighting words doctrine has fared in the U.S. Supreme Court. These results would seem to indicate that it would be rare indeed for a defendant’s words to fall under the fighting words exception. That is not always the case. The next part of this article provides a sampling of decisions in which lower courts have rejected First Amendment-based defenses to disorderly conduct, breach of the peace, or similar charges based on the fighting words doctrine. The final part of the essay then explains the specific factors or facts that cause lower courts to find that certain expression constitutes unprotected fighting words rather than protected speech.
Download the essay from SSRN at the link.

January 19, 2021 | Permalink

Tuesday, January 12, 2021

Conklin on The Big Problem With the Small Penis Rule: Why It Does Not Limit Defamation Liability @AngeloState

Michael Conklin, Angelo State University, has published The Big Problem with the Small Penis Rule: Why It Does Not Limit Defamation Liability. Here is the abstract.

The small penis rule is an informal strategy for limiting defamation liability for authors of fiction. The rule recommends that when an author utilizes a fictional character to defame a real-life person, he should also give the character a small penis—the logic being that in order to sue, a plaintiff would have to admit that he is the fictional character, therefore admitting that he has a small penis, and thus dissuading such litigation. In this first-ever Article to address the issue, evidence is provided for why this is an unwise strategy because it would likely cause an increase in defamation liability. Additionally, this Article covers alternatives available to authors of fiction, a real-life example from Michael Crichton, and the peculiarly gendered nature of the small penis rule.

Download the article from SSRN at the link.

January 12, 2021 | Permalink