Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, March 25, 2019

Zhu and Krever on The Impact of Newspaper Reports on Fear of Violent Crime in Hong Kong @uwanews @UWALawSchool

Runping Zhu, The University of Western Australia, and Richard Krever, The University of Western Australia Law School, has published The Impact of Newspaper Reports on Fear of Violent Crime in Hong Kong. Here is the abstract.

This study analyzed violent crime reports in three large circulation newspapers and tested by survey the relationship between newspaper reporting of crime and fear of crime. As was expected, there was a nexus between more sensationalist newspaper reporting and the public's fear of crime. Unexpected findings were an inverse relationship between newspaper format and awareness of violent crime, and also between awareness of crime and fear of crime.

The full text of the article is not available for download from SSRN.

March 25, 2019 | Permalink

Stone on Freedom of Expression in Asia @Adrienne_Stone1

Adrienne Stone, University of Melbourne Law School, is publishing Freedom of Expression in Asia in the Oxford Handbook of Constitutional Law in Asia (Lau, Lau, and Schwartz, eds., Oxford University Press) (forthcoming). Here is the abstract.

Freedom of expression is widely protected in Asian constitutions in keeping with its global status as a near universal tenet of modern constitutionalism. In many respects, the protection of freedom of expression in Asian constitutions takes a familiar form. Its textual and doctrinal manifestations draw upon, and resemble, the law of freedom of expression seen in other constitutions. However, when it comes to matters of substance differences abound. Just as in the rest of the world, in Asia differing views on freedom of expression are evident, even as between closely related constitutional systems. Indeed, the diversity of approaches to freedom of speech in the region makes out the claim that there is no distinctively Asian form of constitutionalism, though certain common themes are evident.

Download the essay from SSRN at the link.

March 25, 2019 | Permalink

Stanford's Free Course On Attacks on Freedom of the Press

Last fall, Stanford Continuing Studies in conjunction with the John S. Knight Journalism Fellowships offered a course called Journalism Under Siege? Truth and Trust in a Time of Turmoil. Over five weeks, it presented views from twenty-eight experts. Now those presentations are available online. Here's more about the course, including links to the talks. 

March 25, 2019 | Permalink

Sunday, March 24, 2019

On PBS Tonight: "King Charles III"

Airing tonight on PBS: King Charles III, a filmed version of Mike Barlett's play of the same name, first performed at the Almeida Theatre in London in 2014. The play imagines events after the death of Queen Elizabeth II and the accession of Charles, Prince of Wales. First up: whether the new King should assent to a new law regulating the press.  His struggle to decide whether to agree unleashes a constitutional crisis. The film stars the late Tim Pigott-Smith and Oliver Chris as Prince William.

March 24, 2019 | Permalink

Tuesday, March 19, 2019

UNC Center For Media Law and Policy Prize Competition Now Open

Competition now open:

 

The UNC Center for Media Law and Policy awards annual prizes to students who write the best published scholarly articles on media law and policy related topics. The James R. Cleary Prize competition is open to all college and university students. Up to three winners will be selected, with a first prize of $1,000, a second prize of $500, and a third prize of $250. The deadline for this year’s competition is April 15, 2019.  See the attached flyer and information sheet for more details!

 

https://medialaw.unc.edu/2019/03/james-r-cleary-prize-student-media-law-policy-research-2018-competition/

 

 

 

 

March 19, 2019 | Permalink

Wednesday, March 13, 2019

Lidsky on "Whither the Fourth Estate?" @lidskylidsky

Lyrissa Barnett Lidsky, University of Missouri School of Law, has published Symposium: Truth, Trust and the First Amendment in the Digital Age, Foreword: Whither the Fourth Estate? at 83 Missouri Law Review 907 (2018). Here is the abstract.

As a professor of Media Law, I have devoted my career over the past quarter of a century to the idea that the press plays a special role in our democracy. That role is largely encapsulated by the concept of the press as Fourth Estate - an unofficial branch of government in our scheme of separation of powers that checks the power of the three official branches. In our constitutional scheme, the press is the watchdog that informs us what the legislative, executive, and judicial branches of government are up to and continually replenishes the stock of news - real news - that enables informed public discussion and rational public policy. Currently many observers, including the distinguished contributors (Professors Sonja West and RonNell Andersen Jones) to our Price Sloan Symposium Issue, believe that the Fourth Estate is under threat. The threat comes from various quarters.

Download the essay from SSRN at the link.

March 13, 2019 | Permalink

Kadri and Klonick on Facebook v. Sullivan: Building Constitutional Law For Online Speech @thomaskadri @Klonick

Thomas Kadri, Yale Law School, and Kate Klonick, St. John's University School of Law and Yale University Information Society Project, have published Facebook v. Sullivan: Building Constitutional Law for Online Speech. Here is the abstract.

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms aren’t bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression — particularly the entangled concepts of “public figures” and “newsworthiness.” In this article, we offer the first empirical analysis of how judges and content moderators have used these two concepts to shape the boundaries of free speech. We first introduce the legal doctrines developed by the “Old Governors,” exploring how courts have shaped the constitutional concepts of public figures and newsworthiness in the face of tort claims for defamation, invasion of privacy, and intentional infliction of emotional distress. We then turn to the “New Governors” and examine how Facebook’s content-moderation system channeled elements of the courts’ reasoning for imposing First Amendment limits on tort liability. By exposing the similarities and differences between how the two systems have understood these concepts, we offer lessons for both courts and platforms as they confront new challenges posed by online speech. We expose the pitfalls of using algorithms to identify public figures; we explore the diminished utility of setting rules based on voluntary involvement in public debate; and we analyze the dangers of ad-hoc and unaccountable newsworthiness determinations. Both courts and platforms must adapt to the new speech ecosystem that companies like Facebook have helped create, particularly the way that viral content has shifted our normative intuitions about who deserves harsher rules in disputes about harmful speech, be it in constitutional law or content moderation. Finally, we explore what this comparison reveals about the structural role platforms play in today’s speech ecosystem and how it illuminates new solutions. We argue that these platforms act as legislature, executive, judiciary, and press — but without any separation of powers to establish checks and balances. With these realities exposed, we contend that platforms must separate their powers and create institutions like the Supreme Court to provide transparent decisions and consistent rationales on how concepts related to newsworthiness and public figures are applied. This will give users some representation and due process in the new, private system regulating their expression. Ultimately, platforms cannot rely on global norms about free speech — which do not exist — and must instead make hard choices about which values they want to uphold through their content-moderation rules. We conclude that platforms should adopt constitution-like charters to guide the independent institutions that should oversee them.

Download the article from SSRN at the link.

March 13, 2019 | Permalink

Wednesday, March 6, 2019

Trimble on Copyright and Geoblocking @unlvlaw

Marketa Trimble, UNLV School of Law, is publishing Copyright and Geoblocking: The Consequences of Eliminating Geoblocking in volume 25 of Boston University Journal of Science and Technology Law (2019). Here is the abstract.

Geoblocking has become a common companion of copyrighted content on the internet; even streaming services can make streamed copyrighted content available or unavailable according to the location of their users. There are various reasons for geographical restrictions on access to content; copyright issues are not the only reasons, but territorial limitations associated with copyright are significant – and sometimes the primary – reasons for implementing geoblocking. This article reviews the current relationship between copyright and geoblocking, particularly the role attributed to geoblocking in copyright law and law of personal jurisdiction in the United States and the European Union; it considers whether geoblocking is an inevitable part of the future of copyrighted content on the internet, particularly in light of recent attempts in the European Union to eliminate geoblocking for copyrighted content; and suggests some possible consequences that might result from eliminating geoblocking within the European Union or on a global or large territorial scale.

Download the article from SSRN at the link.

March 6, 2019 | Permalink

Goldenziel and Cheema on How U.S. Law Hampers the Fight Against Information Warfare @JillGoldenziel

Jill I. Goldenziel, Marine Corps University-Command and Staff College; University of Pennsylvania; Harvard University, and Manal Cheema University of Virginia - School of Law, Alumnus or Degree Candidate Author, have published The New Fighting Words?: How U.S. Law Hampers the Fight Against Information Warfare. Here is the abstract.

The United States prides itself on freedom of speech and information. However, enemy states have weaponized these prized freedoms against the United States. The First Amendment, the Privacy Act, and other U.S. laws designed to protect Americans’ civil liberties paradoxically constrain the U.S.’s ability to combat information warfare by its enemies. This Article argues that the United States must reform laws and doctrine protecting freedom of speech, information, and privacy in order to protect the U.S. democratic process and national security. By exploring the example of the Russian threat to the U.S. electoral process, which is the most widely-known example of information warfare against the United States, this Article will illustrate how enemy states wield the United States’ own laws against it. It will also explain how justifiable concerns with infringement on civil liberties have hampered the United States’ response. The Article concludes by making recommendations on how future legislation and policies should balance First Amendment and privacy rights with national security interests.

Download the article from SSRN at the link.

March 6, 2019 | Permalink

Monday, March 4, 2019

EPIC Obtains FBI Media Guidelines for NSLs

Back in 2017, the Electronic Privacy Information Center (EPIC) filed a FOIA request to obtain the FBI's rules for using National Security Letters (NSLs) when it interacts with the press. The FBI has now released those rules. More here from EPIC. 

March 4, 2019 | Permalink

Friday, March 1, 2019

Dershowitz Asks Second Circuit To Limit Press and Public Access To Hearing

Alan Dershowitz, through his attorney, is asking the Second Circuit to bar the media and public from at least some of  next week's proceedings involving the unsealing of documents in the Jeffrey Epstein case because the information involved is "sensitive." More here from the Miami-Herald. 

March 1, 2019 | Permalink

Wednesday, February 27, 2019

Jorge Ramos on Nicolas Maduro

Jorge Ramos on Nicolas Maduro, here, from the New York Times. Mr. Maduro detained Mr. Ramos and his crew for several hours Monday evening because he did not like their coverage of him, but eventually released them, after seizing their equipment and tapes.  More here from the Washington Post. 

February 27, 2019 | Permalink

Tuesday, February 26, 2019

Chatterjee on IP, Independent Creation, and the Lockean Commons @nirrvala

Mala Chatterjee, NYU School of Law; Stanford University; NYU Department of Philosophy, has published Intellectual Property, Independent Creation, and the Lockean Commons. Here is the abstract.

Copyright and patent law – which grant exclusive rights in two very different kinds of subject matter, but are nonetheless lumped together as “intellectual property” – are predominantly regarded by U.S. scholars as having the same theoretical underpinnings. This manifests in doctrine, as courts have ruled in a number of ways aiming to unify the two areas of law. One example of this tendency to theoretically unify copyright and patent law is Seana Shiffrin’s paper “Lockean Arguments for Private Intellectual Property”, which argues against Lockean understandings of intellectual property. This paper argues that Shiffrin’s challenge is successful in the context of patent law, but not in the context of copyright, due to significant doctrinal differences between the two. The paper then outlines normative questions raised by these differences, as well as potential doctrinal implications that would result if copyright and patent law are shown to have distinct normative foundations.

Download the article from SSRN at the link.

February 26, 2019 | Permalink

Cheng Lim Saw on Implications of Reposting Copyright Material Online and Svensson Distinguished in CJEU Judgment Land Nordrhein-Westfalen v. Dirk Renckhoff

Cheng Lim Saw, Singapore Management University School of Law, ha spublished Implications of Reposting Copyright Material Online and Svensson Distinguished in CJEU Judgment: Land Nordrhein-Westfalen v Dirk Renckhoff at 30 Singapore Academy of Law Journal 1126 (2018). Here is the abstract.

This comment considers the CJEU’s recent decision in Land Nordrhein-Westfalen v Dirk Renckhoff (Case C-161/17) EU:C:2018:634, concerning the legality of reposting copyright-protected material on the Internet. Notably, the earlier decision of the CJEU in Svensson – which was a case on hyperlinking and although cited fairly extensively in argument – was carefully distinguished on the facts.

Download the article from SSRN at the link.

February 26, 2019 | Permalink

Blitz on Lies, Line Drawing, and (Deep) Fake News

Marc Jonathan Blitz, Oklahoma City University, has published Lies, Line Drawing and (Deep) Fake News at 71 Okla. L. Rev. 59 (2018). Here is the abstract.

Just over twenty years ago, in 1998, science fiction writer and technologist David Brin warned, “One of the scariest predictions now circulating is that we are about to leave the era of photographic proof. . . . We are fast reaching the point where expertly controlled computers can adjust an image, pixel by microscopic pixel, and not leave a clue behind.” (David Brin, The Transparent Society: Will Technology Force Us to Choose Between Privacy and Freedom? 28 (1998)). Now, many articles are reporting that a similar technological transformation is occurring in the realm of audio- and video recording. Legislators and legal scholars have begun asking what laws or technological measures can be used to protect the public from being deceived by “deep fake” videos. This symposium essay considers how First Amendment free speech protection might apply to the creation of such videos – and how such protection might differ from the protection that the Supreme Court found, in 2012, applies to false statements of fact. First, it analyzes how courts have generally adhered to a well-established dichotomy in First Amendment treatment of false claims: In the commercial marketplace, government often stands ready to intervene to protect us against being sold forgeries or other fake goods. The same is true in certain situations where security is at stake, for example, where a fake ID might give a person unwarranted access to an airplane or a building off-limits to the general public. Matters are very different, by contrast in the marketplace of ideas. Here, individuals are largely on their own. Government may not constitutionally exile certain ideas from the free trade in ideas, as it can ban harmful goods or services from the realm of buying and selling. In the realm of free expression, wrote Justice Jackson, “every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.” Thomas v. Collins, 323 U.S. 516 (1945) (Jackson, J concurring). The justices in the 2012 case, United States v. Alvarez, disagreed about how to classify verifiably false autobiographical statement in this dichotomy (and thus disagreed about how to analyze Alvarez’s false claim to have won a Congressional medal of honor). But they largely agreed that false statements on matters of public concern should generally be treated as contributions to the marketplace of ideas, and receive staunch First Amendment protection – unless they constitute defamation, fraud, or some other legally-cognizable harm. Having examined the Alvarez decision and certain difficulties that confront it, the essay then asks whether this First Amendment framework requires modification when the vehicle for deception is not merely a falsity but a forgery – that is, where it is not merely the content of the speech that is intended to deceive, but also its purported source or vehicle. A deep fake video, for example, does not simply present a false description of an event. It clothes such falsity in the authority of video evidence. The essay considers some of the reasons why the First Amendment should perhaps give government greater leeway to regulate fake video- or audio-recording than verbal lies - why, for example, a false statement about war-time actions might be protected speech, whereas a fake video of an event in that war allowing people to see with their own eyes, events which never occurred - might raise more significant concerns. Or why the false content in a fake news article may be protected speech but this may not be true of the false guise it wears as a New York Times, Chicago Tribune, or Washington Post article when neither publication played any role in it. The essay also briefly considers some of the difficulties that courts would face in attempting to differentiate in this way between falsity and forgery, and providing different First Amendment rules to each category of deception.

Download the article from SSRN at the link.

February 26, 2019 | Permalink

Sunday, February 24, 2019

New from OUP: Mary Kate McGowan, Just Words: On Speech and Hidden Harm (2019) @OxUniPress

New from Oxford University Press: Mary Kate McGowan, Professor of Philosophy, Wellesley College, has published Just Words: On Speech and Hidden Harm (2019). Here is a description of the book's contents.

We all know that speech can be harmful. But what are the harms and how exactly does the speech in question brings those harms about? Mary Kate McGowan identifies a previously overlooked mechanism by which speech constitutes, rather than merely causes, harm. She argues that speech constitutes harm when it enacts a norm that prescribes that harm. McGowan illustrates this theory by considering many categories of speech including sexist remarks, racist hate speech, pornography, verbal triggers for stereotype threat, micro-aggressions, political dog whistles, slam poetry, and even the hanging of posters. Just Words explores a variety of harms - such as oppression, subordination, discrimination, domination, harassment, and marginalization - and ways in which these harms can be remedied.

February 24, 2019 | Permalink

Thursday, February 21, 2019

The Conversation On CNN's Hire of Sarah Isgur Flores @ConversationUS

Sarah Isgur Flores moves to CNN. The Conversation examines similar media hires and analyzes this one. 

February 21, 2019 | Permalink

Sunday, February 17, 2019

"Magic Hour," Series Featuring Young Journalist, Now Filming

Currently filming in Vancouver, BC: Magic Hour (Apple/Paramount), a ten-episode series based on the life and stories of young journalist Hilde Lysiak. More here from Deadline Hollywood. and here, from Inside Vancouver.

February 17, 2019 | Permalink

Friday, February 15, 2019

Center For Journalism Ethics, UW-Madison, Announces Finalists For Anthony Shadid Award @UWJournEthics

The Center for Journalism Ethics, University of Wisconsin, Madison, has announced the five finalists for the 2019 Anthony Shadid Award in Journalism Ethics. 

 

 

Here from the Center's announcement, is the list. Read more about the award here.

Julie K. Brown and Emily Michot, Miami Herald. “Perversion of Justice” was a three-part series examining how a wealthy hedge fund manager – accused of molesting and sexually assaulting hundreds of underage girls – was able to manipulate the U.S. justice system to help cover up the scope of his crimes and keep his victims in the dark. According to the nomination, the reporters had to earn the trust of victims who had been traumatized not only by Jeffrey Epstein, but also by the justice system and the news media.
Garance Burke and Martha Mendoza, Associated Press. “The Innocents: How U.S. immigration policy punishes migrant children” was a year-long investigation into the Trump administration’s family separation policy and included stories on tender age shelters, alleged abuse in shelters, the abuse of a Honduran teen, adoption of migrant children, the scope of the migrant kids program, the billion-dollar industry of detaining immigrant children, and the waiving of FBI checks for staff at a teen migrant camp. According to the nomination, this AP team prioritized the welfare of the children they interviewed while also “[holding] those in power accountable for immigration policies that are punishing the most vulnerable.”
Hannah Dreier, ProPublica. “A Betrayal” tells the story of a teenager and MS-13 gang member who became a government informant, only to face death threats and deportation after federal agents reneged on a promise to protect him. According to the nominating letter, Dreier “balanced the imperative to expose bad policies and abuses of power against the danger to a teenager’s life.”
David Jackson, Jennifer Smith Richards, Gary Marx, Juan Perez, Jr., Chicago Tribune. “Betrayed” is an investigative series that exposed Chicago schools’ failure to protect students from sexual abuse and assault. According to the nominating letter, Jackson and team “applied journalistic standards honed over years of investigating sexual violence against vulnerable people” to “for the first time [quantify] the staggering prevalence of sexual violence against students in a large U.S. school district.”
Maggie Michael, Nariman El-Mofty, Maad al-Zikry, Associated Press. Throughout 2018, these reporters investigated the atrocities occurring during Yemen’s war, publishing “Yemeni prisoners say Emirati officers sexually torture them,” “Ex-inmates: Torture rife in prisons run by Yemen rebels,” “Children as young as 10 fight, kill and die in Yemen’s war” and “AP investigation: Food aid stolen as Yemen starves.” According to the nomination letter, the AP reporters “braved dangers and faced tough ethical questions as they fought to tell stories that the world heard from no other source.”

February 15, 2019 | Permalink

Ben-Natan on The Legal Challenge to the Playboy Challenge @TelAvivUni

Smadar Ben-Natan, Buchmann Faculty of Law; UC Berkeley Center for the Study of Law and Society, UC Berkeley Center for Middle Eastern Studies, has published Controversy and Consensus, Pornography and Hate Speech: The Legal Challenge to the Playboy Channel in Prostitution, Pornography and Trafficking in Women: Israel's Blood Money 195 (Esther Hertzog and Erella Shadmi, eds., Routledge, 2019). Here is the abstract.

In 2004, the Israeli Supreme Court affirmed the legality of Playboy Channel broadcasts in Israel, after a challenge presented by a coalition of twelve feminist civil society organizations. The Court made rhetorical use of comparative law to legitimize its decision, by creating a false impression of international consensus over pornography and freedom of speech. A closer look into the American and Canadian doctrines on freedom of speech on which the court relies as identical, reveals that they are fundamentally different in their relation to pornography as well as to hate speech, it’s closest analogue. The article builds on similarities between Israel and Canada in banning hate speech, to suggest the analogy to hate speech as useful in the pornography debate. Further, the appearance of a global consensus is rhetorically used by the court to minimize and trivialize the deep controversy over pornography in Israel.

Download the essay from SSRN at the link.

February 15, 2019 | Permalink