Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, September 19, 2019

Justice Department Sues Edward Snowden Over His Failure To Submit Manuscript of New Book for Pre-Publication Review

The U.S. Department of Justice is suing Edward Snowden, claiming that the publication violates the non-disclosure agreement he signed as an employee of a company that contracted with the NSA and was also an employee with the CIA. Under these agreements, employees of the government or employees of companies that contract with the government must seek releases to disclose information that they obtain during their employment. The DOJ contends that Mr. Snowden has never received such a release and did not submit the book, Permanent Record, published by Macmillan, for pre-publication release to either the CIA or the NSA for examination before allowing any other person to read the manuscript.


More here from NPR, a press release from the Department of Justice, and NBC News. 

A number of former CIA employees are suing over the agency prepublication review system, alleging that it ends by redacting too much material from manuscripts that criticize the agency or its policies. More here.

In 1980, the Supreme Court found in favor of a lower court decision that created a constructive trust composed of a former CIA employee's profits for the benefit of the government, when the employee failed to submit a manuscript for pre-publication review. See Snepp v. United States, 444 U.S. 507 (1980).


September 19, 2019 | Permalink

Wednesday, September 18, 2019

Kahn on Mask Bans as Expressions of Memory Politics in the United States

Robert Kahn, University of St. Thomas School of Law (Minnesota), has published Mask Bans As Expressions of Memory Politics in the United States. Here is the abstract.

Mask laws have a lengthy history in the United States, one primarily, but not exclusively tied up with the Ku Klux Klan. They also are an instance of memory politics. In particular, mask bans complicate Nikolay Koposov’s distinction between narrow, self-centered memory politics (society casting itself as a victim), and broad, universalistic memory politics (society recognizing its past crimes). Sometimes, as in the Reconstruction Era, mask bans sent inculpatory or universal messages, albeit weak ones. By the 1920s, the mask bans protected Southern elites and by the 1950s, they partially exculpated the regime of segregation by focusing attention on the Klan as uncouth, cowardly, and unworthy defenders of a “progressive” South still deeply invested in segregation and White supremacy. As such, mask bans show that memory laws are sometimes used as tools of moral distancing, something also on display in recent attempts to anoint Antifa as the new Klan by “unmasking” it.

Download the article from SSRN at the link.

September 18, 2019 | Permalink

Alexander on the Legacy of Schenck and Abrams in Free Speech Jurisprudence

Larry Alexander, University of San Diego School of Law, is publishing Inciting, Requesting, Provoking, or Persuading Others to Commit Crimes: The Legacy of Schenck and Abrams in Free Speech Jurisprudence in the SMU Law Review. Here is the abstract.

In this article I compare the original clear and present danger cases, Schenck and Abrams, with the Supreme Court’s later amendment of the test in Brandenberg. I raise some problems with the latter case’s test and ask whether the Court has really made any progress.

Download the article from SSRN at the link.

September 18, 2019 | Permalink

Saturday, September 14, 2019

Ninth Circuit: Montana Statute Prohibiting Political Robocalls Violates First Amendment

In Victory Processing v. Fox, the 9th Circuit has ruled that a Montana statute prohibiting political robocalls runs afoul of the First Amendment, holding while the government may regulate the time, place, and manner of such calls, it may not regulate the content of such calls unless it demonstrates that the statute is narrowly tailored to serve a compelling state interest. Read the ruling here. 

September 14, 2019 | Permalink

Thursday, September 12, 2019

Someone Sends the EFF a Takedown Notice Regarding Its Own Graphic

The EFF responds to an amusing copyright takedown request. Patiently.

September 12, 2019 | Permalink

Sandeen and Mylly on Trade Secrets and the Right to Information @SharonSandeen @UniTurku

Sharon K. Sandeen, Mitchell Hamline School of Law, Hanken School of Economics, and Ulla-Maija Mylly, University of Turku, Faculty of Law, are publishing Trade Secrets and the Right to Information: A Comparative Analysis of EU and US Approaches to Freedom of Expression and Whistleblowing in the North Carolina Journal of Law and Technology. Here is the abstract.

Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.

Download the article from SSRN at the link.

September 12, 2019 | Permalink

Tuesday, September 10, 2019

Mills and Harclerode on Privacy, Mass Intrusion and the Modern Data Breach @UFLaw

Jon L. Mills and Kelsey Harclerode, both of the University of Florida College of Law, have published Privacy, Mass Intrusion and the Modern Data Breach at 69 Fla. L. Rev. 771 (2018). Here is the abstract.

Massive data breaches have practically become a daily occurrence. These breaches reveal intrusive private information about individuals, as well as priceless corporate secrets. Ashley Madison’s breach ruined lives and resulted in suicides. The HSBC breach, accomplished by one of their own, revealed valuable commercial information about the bank and personal information about HSBC customers. The employee responsible for the breach has since been convicted of aggravated personal espionage, while third-party news outlets have been free to republish the hacked information. Some information disclosed in data breaches can serve a public purpose. The Snowden disclosures, for example, revealed sensitive government information and were also crucial to public policy debate, a significant amount of disclosed information is destructive to individuals and companies alike, and often has little, if any, public value. The conflict between publicly important disclosures and disturbing private intrusions creates a direct confrontation between freedom of expression and privacy. A full analysis of this confrontation requires assessment of the specific circumstances of breach—from the vulnerabilities present beforehand to the aftermath when the media, companies, and individuals all must cope with the information exposed. This analysis begins by evaluating the importance of information in modern society. Big data is now an inescapable part of our culture. A data breach may contain intimate details about medical conditions or national security secrets. The disclosure of either has its own kind of devastating effect. Examples of the impact of a mass data breach include the hacking of Target Corporation, Yahoo! Inc., Home Depot, Inc., Sony Corporation, Anthem Inc., HSBC Private Bank (Suisse), SA, and A dissection of these breaches reveals a common theme—the ineffectual legal system, which provides little protection or remedy for any party involved. Several factors—including the anonymity of hackers, outdated legal remedies, and free speech protections for third-party publishers—together create an uncertain and uncharted legal landscape. After evaluating the available statutory and common law remedies, this Article posits that reinvigorated private causes of action can be a starting point for developing stronger legal remedies for those damaged in a breach. The right facts and legal arguments can create new remedies out of existing legal doctrines. Further, public values on protecting privacy are in flux. More protective policies in the European Union demonstrate that privacy and free expression can coexist. Some EU policies may provide examples of legislative options. Corporate entities and individuals are at risk and are suffering real harm in a world with daily data breaches and ineffective laws. The need for new perspectives is urgent.

Download the article from SSRN at the link.

September 10, 2019 | Permalink

Voss on Obstacles to Transatlantic Harmonization of Data Privacy Law in Context @wgvoss

W. Gregory Voss, Toulouse Business School, is publishing Obstacles to Transatlantic Harmonization of Data Privacy Law in Context in volume 2019 of the Journal of Law, Technology and Policy. Here is the abstract.

Globalization seems to call for the harmonization of laws, especially in sectors affecting global business, and this is all the truer with respect to laws affecting the technology industry, with the facility of its cross-border communications networks. Data privacy law on both sides of the Atlantic benefits from common origins but eventually divergence occurred, causing compliance challenges for companies and the potential halting of cross-border data flows from the European Union to the United States. Harmonization could possibly obviate such difficulties, and there is a window of opportunity to achieve this with discussion in the United States of a potential federal data privacy law. After setting out the historical context, this study posits and details three major obstacles to full-scale transatlantic harmonization of data privacy law, from the perspective of what has become the predominant data privacy model—that of the European Union. These are: laissez-faire policy and neoliberalism in the United States (and resulting focus on self-regulation there), the lobbying power of the U.S. technology industry giants in a conducive U.S. legislative system and differing constitutional provisions on both sides of the Atlantic. Each of these elements makes attaining true harmonization more difficult, if not impossible. Nonetheless, corporate action in the United States might have given some hope of a de facto harmonization of practices, although hopes have not led to the equivalent of harmonization of laws. Political and other realities provide further context, leaving reason to be doubtful about the prospects of true transatlantic harmonization of data privacy law. Finally, certain areas for improvement in the context of U.S. legislative action are discussed.

Download the article from SSRN at the link.

September 10, 2019 | Permalink

Wednesday, September 4, 2019

Patrick File, How Journalists Make the Meaning of the 1st Amendment @JHistoryJournal @PatrickCFile

From the site Journalism History, an essay by Patrick File, University of Nevada, Reno, How Journalists Make the Meaning of the First Amendment.

September 4, 2019 | Permalink

Google and YouTube Agree To Pay $170M To FTC, New York, For Collecting Children's Data, Selling Ads

Google and Youtube is paying $170 million in penalties,  $136M to the Federal Trade Commission and $34M to the state of New York, to settle accusations against the companies that YouTube knowingly collected information about children who visited the platform. YouTube then used that data to sell ads. Such behavior would violate the Children's Online Privacy Protection Act (COPPA).  Reports surfaced about a possible settlement last week. See Politico's story here.

See the complaint here.

Here's a link to the FTC website announcing the agreement.

Here's a link to the FTC website featuring the COPPA rule.

More here from CNN Business, 

September 4, 2019 | Permalink

Tuesday, September 3, 2019

Lunney on A Natural Right To Copy

Glynn S. Lunney, Jr., Texas A&M University School of Law, has published A Natural Right to Copy. Here is the abstract.

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth or perpetual duration. Rather, even a natural rights framework leads to a copyright regime shorter and narrower than we presently have. While I agree that copyright should be shorter and narrower, I worry that Professor Gordon conceded too much in her first step. Neither Locke’s reasoning nor Professor Gordon’s reading of it can justify a right to prohibit copying as a matter of natural law. It is not the right to prohibit copying to which we have a natural entitlement. It is the right to copy.

Download the article from SSRN at the link.

September 3, 2019 | Permalink

Perel and Elkin-Koren on Separation of Functions for AI: Restraining Speech Regulation By Online Platforms

Maayan Perel (Filmar), Netanya Academic College and Niya Elkin-Koren, University of Haifa Faculty of Law, have published Separation of Functions for AI: Restraining Speech Regulation By Online Platforms. Here is the abstract.

The Free Speech Clause of the First Amendment of the U.S. Constitution restricts government regulation of private speech. However, it does not regulate private speech. New forms of speech regulation by online platforms disrupt this constitutional framework. Platforms, such as Google, Facebook and Twitter, are responsible for mediating much of the public discourse and governing access to speech and speakers around the world. These private businesses match users and content in whatever way best benefits their commercial interests. At the same time, however, they exercise regulatory power when they filter, block and remove content, at the request of governmental agents or state actors. Consequently, platforms effectively blend law enforcement and adjudication powers, and sometimes even lawmaking powers. Courts and scholars who tackle speech regulation by plat-forms have basically relied on the well settled constitutional divide between private functions and governmental ones. To the extent that platforms exercise governmental powers in allowing or banning speech or speakers, platforms should be subject, as the argument goes, to public law principles of accountability, legitimacy, oversight, and power separation. In this paper we question this approach. As a practical matter, the public/private framework presumes that public func-tions of a private entity could be neatly separated from its standard business affairs. We argue that with the increasing use of Artificial Intelligence (AI) by platforms for content moderation, the public, law enforcement functions are integrated with the private, business functions that are driven by commercial interests. The same technical design which is used for targeted advertising and for curating personalized content is also deployed for monitoring and censoring online content. Using machine learning, the system is informed by the same labeling of users and content, and makes use of the same API, learning patterns, and software. Consequently, decisions on removal of speech, for (public) law enforcement purposes, are driven by the same data, algorithms and optimization logic which are also underlying all other functions performed by the platform. Therefore, the use of AI in content moderation calls for a fresh approach to restraining the power of platforms and securing fundamental freedoms in this environment. This paper takes a system perspective to speech regulation. It contends that the normative distinctions between public and private functions could be upheld in online content moderation, provided that these distinctions are embedded in the system design. It introduces "separation of functions", a novel approach to restraining the power of platforms while enhancing the accountability in AI driven content moderation systems. We propose to facilitate independent tools embedding public policy. These tools would run on the platforms' data, and would include their own optimization processes informed by public policy. Such separation between independent public tools and private data may enhance public scrutiny of law enforcement speech restrictions which are a traditionally exclusive public function. This functional separation may also facilitate competition among different players who may enrich the design of speech regulation and mitigate biases. Finally, we explore the implications of this approach and discuss its possible limitations.

Download the article from SSRN at the link.

September 3, 2019 | Permalink

Townley and Lubin on The International Law of Rabble-Rousing @AsafLubin @Yale @yaleisp

Hendrick Townley, Yale University, and Asaf Lubin, Yale University, Berkman Klein Center for Internet & Society, are publishing The International Law of Rabble-Rousing in volume 45 of the Yale Journal of International law Online. Here is the abstract.

Within the theater of modern information warfare there exists a particularly devious, and previously unnamed practice, which existing legal literature has so far mostly ignored. This practice we coin "rabble-rousing": the simultaneous, two-sided amplification of content in support of directly contradictory stances on controversies of national significance. The goal of these operations is to sow mistrust and aggravate divisions within a target populace. The tactic has become an especially potent weapon thanks to the widely present technologies of the cyber age including social media platforms and automated “bot” capabilities. This strategy is distinct both from the injection of “fake news” into public discourse – as it need not involve false information – and from doxing and hacking – as it has no obviously illegal component under domestic law nor does it target a single individual. This paper offers a complete account of rabble-rousing strategies and explores the extent to which international law and available technologies are well equipped in addressing the threat that these strategies pose to public world order. The paper proceeds in the following order: Part I provides a definition of rabble-rousing strategies, highlighting the ways by which they are uniquely defined from other forms of information warfare. The section then proceeds to highlight the dangers associated with the practice. Part II moves to examine whether rabble-rousing can be recognized as an internationally wrongful act under the traditional paradigms of public international law. The section looks at the prohibitions on coercive intervention and transboundary harm, the principle of sovereignty, and the human rights to self-determination and freedom of expression to determine the legality of rabble-rousing operations under international law. This Section highlights the limits of traditional interpretations of the above legal regimes and proposes how certain adaptations to the law could potentially better capture the examined phenomenon. Part III assesses current technological capabilities and proposes policy solutions, which will be necessary for states to practically defend against this activity regardless of whether or not wrongfulness can be established.

Download the article from SSRN at the link.

September 3, 2019 | Permalink

Friday, August 30, 2019

Betus, Kearns, and Lemieux on "Terrorism" or "Mental Illness"?: Factors That Impact How Media Label Terrorist Attacks @AllisonBetus @KearnsErinM @aflemieux

Allison Betus, Georgia State University, Erin Kearns, University of Alabama, and Anthony Lemieux, Georgia State University, Global Studies Institute, have published 'Terrorism' or 'Mental Illness'?: Factors that Impact How Media Label Terrorist Attacks. Here is the abstract.

Why do media label some attacks as terrorism while others are attributed to mental illness? Recent public speculation suggests that attacks are considered terrorism when the perpetrator is Muslim and are attributed to mental illness when the perpetrator is White. Yet, there is no systematic analysis of differences in how media label violence as terrorism verses as the result of mental illness. We address this gap by examining print news of all terrorist attacks in the United States between 2006 and 2015. Controlling for fatalities and whether or not the perpetrator was either part of a group or had a mental illness, the odds of an article mentioning terrorism is 488% greater for a Muslim versus a non-Muslim perpetrator. In contrast, there is no difference in the likelihood that a news article discusses mental illness based on whether or not the perpetrator is White. Both of our key results are robust against numerous alternative arguments. Our results partially confirm public speculation and partially dispel it. In practice, differences in how media label terrorism depending on whether or not the perpetrator is Muslim show bias that can influence public perceptions of violence and threats.

Download the article from SSRN at the link.

August 30, 2019 | Permalink

Thursday, August 29, 2019

Abraham and White on First Amendment Imperialism and the Constitutionalization of Tort Liability @UVALaw

Kenneth S. Abraham and G. Edward White, both of the University of Virginia School of Law, are publishing First Amendment Imperialism and the Constitutionalization of Tort Liability in the Texas Law Review. Here is the abstract.

To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer, because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech – the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples. If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.

Download the article from SSRN at the link.

August 29, 2019 | Permalink

Wednesday, August 28, 2019

Menell, Balganesh, and Nimmer on Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise @BerkeleyLawBCLT

Peter S. Menell, UC Berkeley School of Law, Shyamkrishna Balganesh, University of Pennsylvania Law School, and David Nimmer, Irell & Manell, LLP, have published Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise. Here is the abstract.

This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works. Based on the works at issue, uncontested facts, and the judge’s factual findings, the brief contends that defendants’ unauthorized derivative work plainly supported a grant of summary judgment for the plaintiff on the fair use defense. The District Court’s conclusory finding that the defendants’ work is “highly transformative,” disregard of the second and third fair use factors, analysis of the fourth factor, and allocation of the burden of proof misapply the standards for fair use analysis. The District Court’s decision destabilizes essential copyright law principles that have long supported markets for collaborations and derivative works. If this decision stands, competitors could flood publishing, television, film, and merchandising markets with unauthorized derivative works merely by “mashing” in other elements. Lucasfilm could produce OH THE PLACES YODA’LL GO! without obtaining a license from Dr. Seuss Enterprises. The developers of the Pokémon series could offer OH THE PLACES YOU’LL Pokémon GO!. Castle Rock Entertainment could introduce OH THE PLACES YOU’LL Yada Yada Yada!. Warner Bros. could freely mash together Bugs Bunny with Marvel Comic’s Iron Man or Sesame Street’s Kermit the Frog. Moreover, anyone could produce and distribute such works. That result contravenes what Congress intended in establishing an exclusive right to prepare derivative works subject to the fair use defense. While mashups can qualify for fair use in particular cases — for example, where they offer parodic or even satirical commentary and insights; or where a fan adapts his or her favorite characters or scenes for a school project — a categorical rule that commercial, non-parodic, non-satirical mashups automatically qualify as “highly transformative” for purposes of fair use analysis goes well beyond the Copyright Act’s regime for promoting expressive creativity. Promoting mashup art beyond the limits set by copyright law’s exclusive rights, limiting doctrines, and fair use analysis may well be a desirable policy reform for the digital age. Such a course, however, is for Congress and not the judiciary.

Download the article from SSRN at the link.

August 28, 2019 | Permalink

Monday, August 26, 2019

Goldman on The U.K. Online Harms White Paper and the Internet's Cable-ized Future @santaclaralaw @ericgoldman

Eric Goldman, Santa Clara University School of Law, is publishing The U.K. Online Harms White Paper and the Internet’s Cable-ized Future in the Ohio State Tech L.J. Here is the abstract.

In April 2019, the U.K. released a white paper about Online Harms. The White Paper proposes to take Internet censorship to a new height, essentially unmatched by any other Western democracy. It’s a sign of how comprehensive censorship has moved beyond repressive regimes to become trendy even in leading republican democracies. To redress a wide range of anti-social online activity, the White Paper seeks to tightly circumscribe user-generated content — so tightly that only a small number Internet giants will be able to profitably publish user-generated content. Other Internet publishers will be pushed towards licensing professional content and cover those costs by charging subscriber fees to consumers. Thus, the White Paper will produce a reconfigured Internet 3.0 that will resemble the cable TV industry, not the current Internet we know and love. This essay addresses three main points. It first deconstructs the some of the “facts” the White Paper uses to justify its censorious ideas. Then it highlights some of the proposals’ worst policy aspects. The essay concludes by explaining how the White Paper will reshape the Internet and kill off most user-generated content.

Download the article from SSRN at the link.


See the U.K. Online White Paper Harms page here.


August 26, 2019 | Permalink

Can Public Officials Block Critics on Their Social Media Accounts?

First Amendment Watch surveys the legal landscape: Can Elected Officials Block Critics On Their Social Media Pages? 

Some cases of interest: 

Knight First Amendment Institute v. Trump

The Bonnen lawsuit (Texas)

Davison v. Loudoun County Board of Supervisors


More discussion here from the Voice of America.

The First Amendment Watch page is a very nice compilation of cases, analysis, and links.

August 26, 2019 | Permalink

Thursday, August 22, 2019

Conference, Yale Law School: ACC2019: Accountability in Partisan Times, October 4-5, 2019 @YaleLawSch

AAC 2019:  Accountability in Partisan Times
October 4-5, 2019
Yale Law School 

The Access and Accountability Conference brings together a unique combination of practitioners, journalists, scholars and law school clinicians, for spirited conversations that explore key impediments to government transparency and identify legal theories and strategies to overcome them.  As reflected in the conference agenda below, we have recruited some top notch panelists and mapped out a plethora of critical issues to tackle this year.  Registration is open, but space is limited.  Please take a moment to sign up to join the discussion in New Haven this October. 

Please note:  Limited travel stipends are available for law school clinicians and law students. To apply for a stipend, contact Heather Branch at



We look forward to seeing you this Fall in New Haven!

David A. Schulz
Media Freedom & Information Access Clinic
Yale Law School
Office: 203.436.5827
Mobile: 917.733.9014



AAC 2019:  Accountability in Partisan Times

Thursday, October 3

6:30       Informal pizza dinner for early arrivers


Friday, October 4

8:00        Breakfast & Registration


9:00        Welcome from Floyd Abrams


9:10        Newsgathering

Discussion of laws, policies and actions that obstruct the ability of journalists and others to ferret out the news, and potential litigation strategies and legislative responses to protect the right to gather the news.  This panel will tackle the impact on newsgathering from the extraordinary growth of non-disclosure agreements in the private and public sectors, the growing use of text messaging and other ephemeral forms of communication, the expansion of the government’s pre-publication censorship regime, recent efforts to criminalize routine newsgathering techniques, and investigative limitations imposed by computer abuse laws.

Moderator: Lee Levine (Ballard Spahr)

Panelists:     Alex Abdo (Knight Institute); RonNell Anderson Jones (Utah); Ellen Gabler (NY Times); Alan Chen (U. Denver); James McLaughlin (Washington Post)

10:30     Break


10:40     Law Enforcement Accountability

Discussion of the primary impediments to public oversight of local law enforcement agencies and the surveillance technologies they deploy and strategies to improve transparency.  Topics to be taken up include proactive technology information disclosure, theories to compel access to CBP detention centers and other law enforcement sites, the sharing of photos among law enforcement agencies for facial recognition databases, public access to body cam footage, disclosure of surveillance applications and orders, and increased transparency for police disciplinary proceedings.

Moderator: Jonathan Manes (SUNY Buffalo)

Panelists:     Catherine Crump (Berkeley); Craig Futterman (U. Chicago); Rachel Harmon (U.Va); Wes Lowery (Washington Post); Simone Weichelsbaum (Marshall Project).


12:00     Luncheon Discussion:   FOIA— Boon or a Bane?

It is widely recognized that the Freedom of Information Act is broken.  Congress has repeatedly amended FOIA to improve its operation, but the problems only seem to multiply as time moves on.  This panel will engage the questions of whether FOIA is achieving its intended transparency goal, whether a FOIA fix is possible, and what is the best path forward to promote government transparency and accountability.

Moderator: David McCraw (NY Times)

Panelists:     Seth Kreimer (U. Penn); Margaret Kwoka (U. Denver); Jason Leopold (Buzzfeed); David Pozen (Columbia)


1:30        National Security and the Surveillance State

This panel will take up the consequences for transparency of the ongoing application of the Espionage Act to whistleblowers who provide information to the press, and concerns raised by the Act’s imminent application to Julian Assange.  It will also address strategies to address accountability concerns presented by surveillance methods and technologies used on reporters and their sources, and litigation and legislative strategies to improve public access to the types of national security information needed for proper democratic oversight. 

Moderator: Jameel Jaffer (Knight Institute)

Panelists:     Oona Hathaway (Yale); Heidi Kitrosser (U. Minn); Robert Litt (Morrison Foerster); Betsy Reed (Intercept); Charlie Savage (NY Times)

2:50        Break


3:00        Algorithmic Transparency 

Government decision-making is increasingly automated at both the federal and state level in such high stakes domains as criminal justice, law enforcement, housing, health care, employment, education, and elections.  Algorithmic technologies influence individuals, populations, and national agendas, but most are obtained and operated with little oversight, limited accountability mechanisms, and minimal research into their impact.  This panel will explore key issues contributing to the lack of accountability and transparency of algorithms used in government decision-making, and assess potential legal strategies to achieve the level of algorithmic access required for meaningful democratic oversight

Moderator: Jennifer Pinsof (MFIA)

Panelists:     Vera Eidelman (ACLU); Karen Hao (MIT Tech. Rev.) (invited); Lauren Kirchner (MarkUp); Jason Schultz (NYU); Rebecca Wexler (Berkeley)

4:20        Break


4:30        Checks, Balances and the Trump Administration

The current Administration has been criticized for using executive orders and administrative actions to dismantle regulatory regimes without apparent regard for existing law or established fact, and doing so in ways that dodge the checks and balances of congressional and judicial oversight.  This panel will assess how constitutional structures and historic practices intended to promote Executive Branch accountability are performing in an era of expansive executive power, fake news, and the Trump management style.  It will explore the role of the courts, Congress, and the press in promoting Executive Branch accountability—how they are performing, where reform is needed, and what it will take to achieve meaningful progress. 

Moderator: Ian Bassian (Protect Democracy)

Panelists:     Rebecca Bratspies (CUNY); Norman Orenstein (AEI); John Podesta (Ctr. For Am. Progress); Saikrishna Prakash (U.Va)(invited)

5:45       End of day





Saturday, October 5


8:45       Overview of Day’s Objectives


9:00        Keynote Address: “The grim impact of judicial secrecy,” Daniel R. Levine (Thomson Reuters)

Report on the findings of a year-long Reuters investigation into the practices of sealing records and issuing protective orders in the federal courts and the impact of these practices on public health and safety.

9:30        Breakout Sessions:  Action Steps to Improve Judicial Records Access

  1. Clinic litigation projects. This session will feature a nuts and bolts discussion of strategies that can be pursued by law school clinics to bring First Amendment considerations into the calculus for sealing discovery in civil litigation, improve procedures for sealing court files, and enforce the constitutional right of access to court records.

Discussants: Dustin Benham (Texas Tech); Cort Kenney (Cornell), Francesca Procaccini (MFIA), Jennifer Nelson (RCFP); Riana Pfefferkorn (CIS, Stanford)

  1. Research, legislative and policy projects for the non-clinician. Developing a practicum, writing policy papers, amicus opportunities, and other means for non-clinical faculty to improve judicial transparency and accountability.

Discussants: Hannah Bloch-Wehba (Drexell); Alan Chen (U. Denver); Patrick Kabat (Cleveland); Heidi Kitrosser (U. Minn)

10:45     Coffee Break

11:00     Fixing FOIA

Deep dive into what effective FOIA reform might look like and role clinics might play in achieving it.  Discussion will include litigation strategies, fact development, and legislative solutions to bring about meaningful reform and improved government transparency.

Moderator: John Langford (Protect Democracy)

Panelists:     Grace Cheng (Thomson Reuters); Meenu Krishnan (Knight Institute); Adam Marshall (RCFP);Michael Morisy (Muck Rock);Anne Weissman (CREW)

12:15     Luncheon Presentation:  Success Stories

Students and faculty from laws school clinics will present matters in which they succeeded in promoting accountability using theories or strategies that warrant replication or address widespread problems that would benefit from broader attention.

Moderator: Charlie Crain (MFIA)

Panelists:     TBD

1:45       Local Journalism and the Free Expression Law Network (FELN)

Presentation on the launch of Free Expression Legal Network, its current activities and steps to promote the services of this national network to local journalists and news organizations without access to legal resources.

Moderators: Bruce Brown (RCFP), Josh Moore (RCFP)


2:30       Open FELN Steering Committee meeting to follow the close of the conference




This conference is made possible by the generous support of the

John S. and James L. Knight Foundation 

Democracy Fund

Legal Clinics Fund

August 22, 2019 | Permalink

Sander on Freedom of Expression in the Age of Online Platforms @Barrie_Sander

Barrie Sander, FGV School of International Relations, has published Freedom of Expression in the Age of Online Platforms: Operationalising a Human Rights-Based Approach to Content Moderation. Here is the abstract.

In today’s digital public sphere, individuals have little choice but to participate on online platforms, whose design choices shape what is possible, content policies influence what is permissible, and personalisation algorithms determine what is visible. Ensuring that online content moderation is aligned with the public interest has emerged as one of the most pressing challenges for freedom of expression in the twenty-first century. Taking this challenge as its focus, this paper examines the value and challenges of operationalising a human rights-based approach to content moderation – with a specific focus on the choices that online platforms are likely to confront in adhering to their corporate responsibility to respect human rights in this context. The paper examines three dimensions of a human rights-based approach to platform moderation in particular: a substantive dimension, encompassing the alignment of content moderation rules with international human rights law; a process dimension, encompassing the standards of transparency and oversight that platforms should implement as part of their human rights due diligence processes; and a procedural-remedial dimension, encompassing the procedural guarantees and remediation mechanisms that platforms should integrate within their systems of content moderation. The paper concludes by reflecting on some of the limits of the human rights-based approach and cautioning against viewing human rights as a panacea.

Download the article from SSRN at the link.

August 22, 2019 | Permalink