Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, August 12, 2021

UF Brechner Center Opens Paper Competition, Seeks Law Student Entries @BrechnerCenter

From Frank LoMonte, Professor and Director, The Brechner Center for Freedom of Information, University of Florida College of Journalism and Communications

The UF Brechner Center publishes The Journal of Civic Information, a peer-reviewed open-access quarterly journal, to showcase works of "practical scholarship" addressing timely topics that bear on the accessibility of information. 

To encourage law students to do more research and writing about freedom-of-information topics, we have just launched what we envision as a yearly paper competition, with cash awards for the top three papers as selected by an editorial board of scholars.

Completed papers are due by March 25, and details about how to enter are available at this link. (To answer one anticipated question, we are -- at least for this first try -- limiting eligibility to law students rather than all graduate students, because we have not had a shortage of submissions from doctoral students. Also, doctoral students are eligible for a separate annual paper competition run by the National Freedom of Information Coalition, and several have submitted and won cash prizes there.)

Here is a sharable link to the rules and logistics:

We appreciate your sharing this opportunity with your law students, and thanks.

August 12, 2021 | Permalink

Friday, August 6, 2021

Houston Doctor Sues Anderson Cooper, CNN, For Defamation Over Their Coverage Of Her Support For Hydroxychloroquine

Stella Immanuel, a physician in the Houston TX area, is suing Anderson Cooper and CNN for defamation, alleging that Mr. Cooper's reporting about her support for the drug hydroxychloroquine  (HCQ) was false, and injured her reputation. She also alleges that their characterization of her religious beliefs casts doubt on her ability to carry out her responsibilities as a physician. She is seeking $100,000,000 in damages. Link here to the complaint. Link to the Cooper/CNN segment. 

A number of media outlets have coverage of the suit. Here's a sampling. 

First Amendment Watch

The Mercury News 


August 6, 2021 | Permalink

Thursday, August 5, 2021

Virtual Colloquium on Race, Racism, and American Media: Revised Call For Participation @TonyVarona @LiliLevi_UMLaw @Dave_Fagundes @freepress @AnupamChander

An update on the Virtual Colloquium on Race, Racism and American Media, originally scheduled for September 17, 2021.

The Colloquium will now take place February 25, 2022. The co-convenors are the University of Houston Law Center and Georgetown University Law Center. Here is a link to the revised Call for Participation. 


August 5, 2021 | Permalink

FCC Seeking Nominations For the 2021 FCC Chair's Awards For Advancement in Accessibility

From the FCC:



Recognizing Innovations in Technology Access During the COVID-19 Pandemic

By this Public Notice, the Federal Communications Commission (“FCC”) announces the opening of the nomination period for the 10th FCC Chair’s Awards for Advancement in Accessibility (“FCC Chair’s AAA”). The nomination period opens on August 5, 2021 and continues through 11:59 p.m. EDT on September 17, 2021.

The previous awards have recognized groundbreaking innovations in technology and practices that improve access for people with disabilities. The global COVID-19 pandemic has made these awards more relevant and impactful than ever, as the world’s reliance on telecommunications and remote access has skyrocketed. Given this unprecedented historical context, this year, the FCC is soliciting nominations for innovative practices, technologies, and organizations that have creatively leveraged communications and broadband technology, to break down accessibility barriers and ensure that people with disabilities have been able to participate equally in our increasingly connected world.

The Commission is particularly interested in nominations that have addressed the needs of people with disabilities during the COVID-19 pandemic in education, work, and civic life. This includes innovative practices, technologies, policies and research that address longstanding or novel accessibility gaps in remote participation tools, telehealth, access to crucial emergency information, and maintaining important connections between individuals otherwise separated by the pandemic.

Each nomination should include:

· The nominated entity’s name and current contact information.
· The name and contact information of the person submitting the nomination or a notation that the submission is a self-nomination.
· An explanation of why the nomination qualifies for the FCC Chair’s Award.
· A description of the nomination’s impact on access for people with disabilities during the COVID-19 pandemic. Any documentation supporting this work (e.g. media reports, published materials) will help support the nomination.
· A list of any specific efforts, products, policies or materials resulting from the nominees work in this space.

Please send all nominations to: by 11:59 p.m. EDT, September 17, 2021. Selected nominations will be recognized at a ceremony to be held later in 2021. A subsequent announcement will be made providing further specifics about the awards ceremony, including exact time and location.

The FCC Chair’s AAA was first introduced in 2010 at the FCC’s celebration of the 20th anniversary of the Americans with Disabilities Act. Since the first award ceremony in 2011, the awards have played a key role in FCC efforts to recognize technical advances that have made communications tools more accessible to people with disabilities. For information about prior winners of the FCC’s AAA awards, visit

For questions or inquiries about the FCC Chair’s AAA ceremony, please contact Deandrea Wilson (202-418-0703), Chantal Virgile (202-418-0056) or call the ASL Consumer Support Line at 1-844-432-2275 via videophone. Inquiries may also be sent to

August 5, 2021 | Permalink

Thursday, July 29, 2021

Newly Published: Samantha Barbas, The Rise and Fall of Morris Ernst, Free Speech Renegade (University of Chicago Press) @UBSchoolofLaw

Samantha Barbas, University of Buffalo School of Law, has published The Rise and Fall of Morris Ernst, Free Speech Renegade (University of Chicago Press, 2021). Here from the publisher's website is a description of the book's contents.

In the 1930s and ’40s, Morris Ernst was one of America’s best-known liberal lawyers. The ACLU’s general counsel for decades, Ernst was renowned for his audacious fights against artistic censorship. He successfully defended Ulysses against obscenity charges, litigated groundbreaking reproductive rights cases, and supported the widespread expansion of protections for sexual expression, union organizing, and public speech. Yet Ernst was also a man of stark contradictions, waging a personal battle against Communism, defending an autocrat, and aligning himself with J. Edgar Hoover’s inflammatory crusades. Arriving at a moment when issues of privacy, artistic freedom, and personal expression are freshly relevant, The Rise and Fall of Morris Ernst, Free Speech Renegade brings this singularly complex figure into a timely new light. As Samantha Barbas’s eloquent and compelling biography makes ironically clear, Ernst both transformed free speech in America and inflicted damage to the cause of civil liberties. Drawing on Ernst’s voluminous cache of publications and papers, Barbas follows the life of this singular idealist from his pugnacious early career to his legal triumphs of the 1930s and ’40s and his later idiosyncratic zealotry. As she shows, today’s challenges to free speech and the exercise of political power make Morris Ernst’s battles as pertinent as ever.
The Rise and Fall of Morris Ernst, Free Speech Renegade

July 29, 2021 | Permalink

Monday, July 19, 2021

U.S. Attorney General's Office: New Memo "Restrict[s] the Use of Compulsory Process to Obtain Information From or Records of Members of the News Media"

Just released, from the U.S. Attorney General's Office:

a memo "to restrict the use of compulsory process to obtain information from or records of members of the news media."


It reads in part:


  1. The Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities, as set out below.
  1. This new prohibition applies to compulsory legal process issued to reporters directly, to their publishers or employers, and to third-party service providers of any of the foregoing.  It extends to the full range of compulsory process covered by the current regulations, specifically, subpoenas, warrants, court orders issued pursuant to 18 U.S.C. § 2703(d) and§ 3123, and civil investigative demands. Further, it applies regardless of whether the compulsory legal process seeks testimony, physical documents, telephone toll records, metadata, or digital content.
  1. As with the current regulations, this prohibition on compulsory process does not apply to obtaining information from or records of a member of the news media who is the subject or target of an investigation when that status is not based on or within the scope of newsgathering activities.

There are exceptions, including when the member of the media is "under investigation for a violation of criminal law, such as insider Nor does it apply to a member of the news media who has used criminal methods, such as breaking and entering, to obtain government information," when the member of the media is a member of a foreign terrorist organization or is an agent of a foreign power, or has broken the law to obtain the information ("Nor does it apply to a member of the news media who has used criminal methods, such as breaking and entering, to obtain government information").


Link to the press release here.

July 19, 2021 | Permalink

Friday, July 9, 2021

FCC Grants Conditional Waiver To NFL For "Coach to Coach" Communications In Event of Internet Outage

The FCC has conditionally granted the National Football League's request for a waiver of Section 96.39(C) of the Commission's rules "to allow it to continue to operate its coach-to-coach communications system in the limited circumstance of an Internet outage in NFL stadiums, during NFL football games but after authority to operate within the stadium has been obtained from a Spectrum Access System (SAS). For reasons discussed below, we grant Petitioner’s Waiver Request subject to the conditions described herein."

Link here to PDF.

July 9, 2021 | Permalink

Friday, June 25, 2021

CFP: Journal of Free Speech Law @JournalSpeech

From Eugene Volokh, one of the Executive Editors of the Journal of Free Speech Law, a CFP. He notes that the editors would be ready to published articles as early as September, if they receive them as early as August 1st.


Mahanoy School Dist. v. B.L. just came down, and it yielded more questions than it answered. Not so good for litigants and government officials, but great for scholars!

The Journal of Free Speech Law, a new peer-reviewed, faculty-edited journal, plans to quickly publish two to four articles on this case, as a symposium issue—not case notes as such, but rather articles on the broader subject (whether K-12 speech, or government as manager more broadly) in light of the new decision. And given our publication speed, these will likely be the first such articles to be published in a full-fledged law journal.

Our plan:

  1. We need to see submissions by Aug. 1 (or earlier), but given the short timeline, we'll be open for rougher submissions than usual. What we want to see, to make our decision, is a clear explanation of the key novel, interesting, and useful contributions that the article would make.
  2. We require exclusive submissions (via Scholastica,, but we will give an answer within two weeks (our average response time so far is under a week) of Aug. 1. Thus, if we say no, there will be plenty of time to submit to other journals in the August submission cycle.
  3. We plan on publishing the articles online and on Westlaw as soon as the author provides a publishable version, which could be as quickly as early September (or longer, if the author so requires).
  4. Our journal also publishes in print. We expect the print edition to come out towards the end of the year, depending on the timeline for the articles; but we expect that these days the important thing is getting the article out quickly online.
  5. We will set up online symposia on the drafts, so that authors can get feedback from the other authors and from other First Amendment scholars.

Our journal was just founded this year, and will publish its inaugural symposium issue (on regulation of social media platforms) this Summer; the issue we discuss here will be our second. Our robe-and-gown editorial board consists of:

Prof. Amy Adler
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. Heidi Kitrosser
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
Prof. Geoffrey Stone
Judge David R. Stras
Judge Jeffrey S. Sutton
Prof. Rebecca Tushnet
Prof. Eugene Volokh
Prof. James Weinstein
Judge Diane Wood

If you have any questions, please e-mail; and please pass this along to others who are interested.

Jane Bambauer
Ashutosh Bhagwat
Eugene Volokh
Executive Editors

June 25, 2021 | Permalink

Garon on Dysregulating the Media: Digital Redlining, Privacy Erosion, and the Unintentional Deregulation of American Media @NSULawCollege @GaronDigital

Jon Garon, Nova College of Law, has published Dysregulating the Media: Digital Redlining, Privacy Erosion, and the Unintentional Deregulation of American Media at 73 Main L. Rev. 45 (2020). Here is the abstract.

Netflix, Amazon, YouTube, and Apple have been joined by Disney+, Twitch, Facebook, and others to supplant the broadcast industry. As the FCC, FTC, and other regulators struggle, a new digital divide has emerged. The current regulatory regime for television is built upon the government’s right to manage over-the-air broadcasting. As content producers shift away from broadcast and cable, much of the government’s regulatory control will end, resulting in new consequences for public policy and new challenges involving privacy, advertising, and antitrust law. Despite the technological change, there are compelling government interests in a healthy media environment. This article explores the constitutionally valid approaches available to discourage discrimination and digital redlining and instead promote the public interest embodied in the Communications Act. Even as broadcast regulation fades away many of the goals should be pursued, including the promotion of diversity of viewpoint, access to news and educational content, and the fostering of cultural content for those without the financial resources to buy broadband access. In addition, the tracking technologies inherent in online media create a compelling need to protect from the heightened risks to personal privacy. The article calls upon the FTC to become the lead regulator, enforcing the Sherman Act, Clayton Act, and the FTC Act’s provisions to assure that competition, online advertising, customer privacy, and the public interest are rigorously enforced.

The full text is not available from SSRN.

June 25, 2021 | Permalink

LoMonte and Hamrick on Running the Full-Court Press: How College Athletic Departments Unlawfully Restrict Athletes' Right to Speak to the News Media @FrankLoMonte

Frank LoMonte, University of Florida, and Virginia Hamrick, First Amendment Foundation, are publishing Running The Full-Court Press: How College Athletic Departments Unlawfully Restrict Athletes’ Rights to Speak to the News Media in volume 99 of the Nebraska Law Review. Here is the abstract.

The curtain of secrecy that tightly envelops college sports makes it difficult for athletes to blow the whistle on abusive conditions without fear of suffering retaliation. The seemingly obvious recourse for a player who distrusts the internal complaint process – to take the complaint public – is foreclosed at many colleges, because athletes are forbidden from speaking to the media without approval from the athletic department. Is this legal? Can a public institution enforce a categorical prohibition on speaking without running afoul of the First Amendment? Despite the widespread perception of university athletic departments, the answer almost certainly is “no.” This article augments the growing body of scholarship about athletes’ rights by focusing on one particular and largely overlooked right: The right to speak freely to the news media. The article concludes that athletes’ right to discuss issues of public importance – including issues about the safety and integrity of the athletic program – is protected by the First Amendment at state universities, but is routinely being infringed at institutions across the country. The right to speak to the media is foundational to athletes’ ability to blow the whistle on wrongdoing and safety hazards within their own teams, which might otherwise go unaddressed. The article analyzes the potential legal theories that a university might offer in defense of a blanket prohibition on unauthorized communication with the news media: That athletes have diminished free-speech protection because they are employees or because they are students, or that athletes voluntarily waive free-speech rights as part of the contractual bargain for receiving scholarships and other material benefits. The article finds neither theory convincing, demonstrating that neither constitutional law nor contract law provides a defensible basis for enforcing a mandatory-approval regimen before athletes may speak with journalists.The article concludes with recommendations for reforming constitutionally dubious media policies across the college athletic world.

Download the article from SSRN at the link.

June 25, 2021 | Permalink

Thursday, June 24, 2021

Rolph on The Concept of Publication in Defamation Law @dkrolph @SydneyLawSchool

David Rolph, University of Sydney Law School, is publishing The Concept of Publication in Defamation Law in volume 27 of the Torts Law Journal. Here is the abstract.

Publication is an element of the tort of defamation. Increasingly, internet technologies raise difficult issues of publication. Because mass media technologies did not present doctrinal problems about the concept of publication on a similar scale, internet technologies have exposed how poorly understood the basic principles of defamation law are. The principled application of defamation law to resolve novel issues presented by rapidly developing internet technologies require a sound understanding of these fundamental principles. Yet recent case law suggests that there is significant confusion about the basic principles of publication in defamation law. This article examines the role of fault and strict liability in publication, the proper relationship between innocent dissemination and publication, and publication by omission. It argues that the organising question about publication in all cases should be: What is the precise conduct constituting the communication of the defamatory matter, whether the conduct is an act or an omission, for which the defendant is responsible? By focusing on the basic principles of defamation law specifically and the general principles of tortious responsibility, such an approach will facilitate the principled resolution of difficult issues of publication in defamation law as they arise in the future.

Download the article from SSRN at the link.

June 24, 2021 | Permalink

Furgal on The EU Press Publishers' Right: Where Do Member States Stand? @ulafurgal @copyrightcentre

Ula Furgal, University of Glasgow School of Law, is publishing The EU Press Publishers’ Right: Where Do Member States Stand? in the Journal of Intellectual Property Law. Here is the abstract.

The press publishers’ right provided in art. 15 of the Directive on Copyright in the Digital Single Market is the European Union’s response to the news media vs digital platforms clash. The right was adopted following a heated and highly polarised debate, and should become a part of Member States’ laws by 7 June 2021. Even though the deadline is less than two months away, the majority of the Member States still have a long way to go before the press publishers’ right becomes national law. This article offers an opinion on the current state of the implementation of the right. It outlines the ongoing policy discussions and decisions taken by the Member States with regard to selected aspects of the press publishers’ right, including its scope, an appropriate share of revenues due to authors, and licensing mechanisms. The article argues that the implementation of the press publishers’ right is unlikely to bring the news media vs digital platforms saga to an end, as not all uncertainties concerning the new right’s scope will be tackled, and the calls for further regulatory interventions are likely to follow.

Download the article from SSRN at the link.

June 24, 2021 | Permalink

Newly Published: Hugh Macleod, COVID-19 and the Media: A Pandemic of Paradoxes (IMS, 2021) @forfreemedia

Hugh Macleod has published COVID-19 and the Media: A Pandemic of Paradoxes (International Media Support, 2021). Here is the abstract.

Following the COVID-19 pandemic, amid collapsing revenues and a rising torrent of online misinformation and gender-based hate speech, States have a human rights-based obligation to ensure the survival of public interest media, most urgently through subsidies that can be funded by proper taxation of multinational tech companies. That is the leading conclusion of a new report by International Media Support (IMS), which assesses the impact of the COVID-19 pandemic on the operation of the global media sector. Drawing on reports from over 30 IMS partners worldwide, on surveys conducted by international journalism watchdogs through 2020, and supported by in-depth interviews with eight journalists working in public interest media in select IMS partner countries, this report provides comprehensive insight into what it terms ‘a pandemic of paradoxes’. The paper was launched at the opening of the academic conference of UNESCO's World Press Freedom Day 2021.

Download the report from SSRN at the link.

June 24, 2021 | Permalink

Friday, June 18, 2021

Wiersma on The "Disobedience" of Journalists at Public Assemblies: An Analytical Critique of the ECtHr's Case Law From a Media Freedom Perspective @chris__wiersma

Chris Wiersma, Milieu Law & Policy Consulting, has published The 'Disobedience' of Journalists at Public Assemblies: An Analytical Critique of the ECtHR's Case Law from a Media Freedom Perspective at 38 Nordic Journal of Human Rights 261 (2021). Here is the abstract.

In a group of cases in which journalists refused dispersal orders at public assemblies, the European Court of Human Rights (ECtHR) found that certain governmental actions interfered with freedom of expression. Based on a comparative analysis that provides an analytical critique and new insights in the field of media freedom, this article argues that the application of the ‘strict scrutiny’ perspective could be improved by including a closer look at the risk assessments made by the domestic authorities. The analysis delves into the development of the ECtHR’s case law and highlights the potential problems in guaranteeing protection under Article 10 of the European Convention on Human Rights (ECHR), especially considering the consequences of the approach taken in the Pentikäinen Grand Chamber judgment.

The full text is not available from SSRN.

June 18, 2021 | Permalink

Monday, June 14, 2021

Francis on Freedom of Thought in the United States: The First Amendment, Marketplaces of Ideas, and the Internet @sjquinney

Leslie P. Francis, University of Utah College of Law, is publishing Freedom of Thought in the United States: The First Amendment, Marketplaces of Ideas, and the Internet in the European Journal of Comparative Law and Governance. Here is the abstract.

Freedom of thought is not directly protected as a right in the United States. Instead, US First Amendment law protects a range of rights that may allow thoughts to be expressed. Freedom of speech has been granted especially robust protection. US courts have extended this protection to a wide range of commercial activities judged to have expressive content. In protecting these rights, US jurisprudence frequently relies on the image of the marketplace of ideas as furthering the search for truth. This commercial image, however, has increasingly detached expressive rights from the understanding of freedom of thought as a critical forum for individual autonomy. Indeed, the commercialization of US free speech doctrine has drawn criticism for “weaponizing” free speech to attack disfavoured economic and regulatory policies and thus potentially affecting freedom of thought adversely. The Internet complicates this picture. This paper argues that the Supreme Court’s expansion of the First Amendment for the benefit of commercial actors lies in the problematic tension with the justification for individual freedom of thought resting in personal self-direction and identity.

Download the article from SSRN at the link.

June 14, 2021 | Permalink

Tuesday, June 8, 2021

Ugland on Hacks, Leaks, and Data Dumps: The Right to Publish Illegally Acquired Information Twenty Years After Bartnicki v. Vopper @ErikUgland

Erik Ugland, Marquette University, is publishing Hacks, Leaks, and Data Dumps: The Right to Publish Illegally Acquired Information Twenty Years After Bartnicki v. Vopper in volume 96 of the Washington Law Review (2021). Here is the abstract.

This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times over his tax records, to the civil suits spawned by the hack of DNC servers—so there is a pressing need for clarity. The empirical part of this Article presents the results of a comprehensive analysis of every case applying Bartnicki over the past two decades to determine if lower courts have answered the questions Bartnicki left open and to identify points of confluence and conflict. The analysis shows courts are divided about nearly every aspect of Bartnicki. There is a circuit split regarding the amount of separation a publisher must have from a source in order to be protected, division about the relevance of statutory prohibitions on receiving or possessing certain information, and confusion about how to assess whether publications, particularly those involving large caches of data, address matters of public concern. The normative part of this Article proposes a reorientation of courts’ approaches to these issues by (1) untethering liability for the procurement, receipt, and publication of information, treating each as a legally discrete act; (2) denying Bartnicki protection only to those who directly participate or assist in the illegal procurement of information; (3) treating as a First Amendment violation any law punishing those who merely receive or possess newsworthy information; and (4) engaging in more contextual analyses of “public concern.” All of these changes will help stabilize the law, strike a better balance between newsgathering and secrecy, and vitalize press and citizen communication at a time of decreasing government and private-sector transparency.

Download the article from SSRN at the link.

June 8, 2021 | Permalink

Monday, June 7, 2021

White House Correspondents' Association Announces New Scholarship at University of Tennessee @whca

The White House Correspondents' Association has announced the Carter Holland Memorial Scholarship at the University of Tennessee. The scholarship honors the late Carter Holland, son of Lucie and Steven Holland. Steven Holland is a well-known journalist who has covered the White House for various media, including CBS News and Reuters. More about the new scholarship here.

June 7, 2021 | Permalink

Friday, June 4, 2021

Fidler on The New Editors: Refining First Amendment Protections for Internet Platforms @mailynfidler

Mailyn Fidler, Harvard University Berkman Klein Center for Internet & Society, is publishing The New Editors: Refining First Amendment Protections for Internet Platforms in the Notre Dame Law School Journal on Emerging Technology (2021). Here is the abstract.

(Forthcoming) This Article envisions what it would look like to tailor First Amendment editorial privilege to the multifaceted nature of the Internet, just as courts have done with media in the offline world. It reviews the law of editorial judgment offline, where protections for editorial judgment are strong but not absolute, and its nascent application online. It then analyzes whether the diversity of Internet platforms and functions alters this application at all. First Amendment editorial privilege, as applied to Internet platforms, is often treated by courts and platforms themselves as monolithic and equally applicable to all content moderation decisions. The privilege is asserted by all types of platforms, whether search engine or social media, and for all kinds of choices. But Section 230’s broad protections for Internet platforms have largely precluded the development of a robust body of First Amendment law specific to Internet platforms. With Section 230 reform a clear priority for Congress, Internet platforms will likely turn to First Amendment defenses to a greater extent in coming years, prompting the need to examine how the law of editorial privilege applies online. I offer six concrete conclusions about how online platforms do or do not challenge the application of the law of editorial judgment. The features and functions of online platforms do not change the need to differentiate when a platform is occupying a speaker or non-speaker role, the application of longstanding First Amendment exceptions for low value speech to platforms, and the judiciary’s hesitancy to include market competitiveness in First Amendment analyses. These same features and functions require insisting that no distinction between wholesale and retail-level editorial judgments emerges in the online space, threaten to collapse the useful distinction between editing and advertising, and suggest user decisions should be given greater weight in determining speech-related damages.

Download the article from SSRN at the link.

June 4, 2021 | Permalink

Pogácsás on András Koltay: New Media and Freedom of Expression: Rethinking the Constitutional Foundations of the Public Sphere (Book Review)

Anett Pogácsás, Peter Pazmany Catholic University, has published András Koltay: New Media and Freedom of Expression: Rethinking the Constitutional Foundations of the Public Sphere (Book Review) at 8 Hungarian Yearbook of International Law and European Law 425 (2020). Here is the abstract.

Nothing shows better how much the public sphere has changed that the Index of a book about it has the most references to “Social media platforms”, “Search engines” or “Gatekeepers”. „One might almost say that Google and Facebook gave birth to (the public sphere of) the twenty-first century” – raises the Author, drawing the attention to that online communication has huge impact on our whole life, including public sphere. One can only recommend the new book of András Koltay, because it provides a sure handrail in rapidly changing world of online communication. His explication and commentary about gatekeepers’ relation to content not only gives a line of deeper sight to his readers, but also the hint of optimism: this uncertainty is also a kind of certainty for us, being sure that this is not the first – and even not the last – turning point.

Download the book review from SSRN at the link.

June 4, 2021 | Permalink

Friday, May 28, 2021

Schafer on Whether Houchins Matters @MatthewSchafer

Matthew Schafer, ViacomCBS; Fordham University School of Law, has published Does Houchins Matter? Here is the abstract.

Houchins v. KQED, Inc. is an enigma. The issue presented by the case was whether the press had a special right of access to a prison over that owed to the public. Only seven Justices participated in the case. The lead opinion, a three-Justice plurality, failed to command a majority of even the seven-Justice Court. The case split 3-1-(3), representing both a quantitative and qualitative schism between the factions. The plurality concluded that “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information.” The concurring opinion agreed with the plurality in part and with the dissenters, in part, who would have found that “arbitrarily cutting off the flow of information at its source abridges the freedom of speech and of the press.” But that, as they say, is just the beginning of the story. This story – the story of the existence of a First Amendment right of access – from Houchins on through to the Court’s most recent access cases, is told in Part I. You see, as soon as the Court decided Houchins, it drew it into doubt. One year later, the Court would reserve judgment on the question the Houchins plurality allegedly decided. A year after that, the Court found, contrary to Houchins, that in some instances the First Amendment guarantees access to some government information. That case, Richmond Newspapers, Inc. v. Virginia concerned the right of access to criminal trials. It was split too, but the majority of the eight-Justice Court – 7-(1) – agreed that the First Amendment guaranteed a right of access. And, later, in Globe Newspaper Co. v. Superior Court, a majority of the Court found that the First Amendment was broad enough to be read as encompassing a right of access that “ensure[s] that the individual citizen can effectively participate in and contribute to our republican system of self-government.” This history is difficult to square with the absolutist language in the Houchins plurality. Subsequent Supreme Court cases, however, seemed to suggest Houchins had continuing viability. Thus, as explained in Part II, while many courts of appeals have found that Richmond Newspapers and Globe Newspaper provide the general rule when it comes to access, just as many have concluded that the Houchins plurality – a plurality that never constituted a majority of the Court – establishes the general rule that there is no right of access to government information under the First Amendment at all. In doing so, these courts have downplayed the majority position in Richmond Newspapers and Globe Newspaper as mere exceptions to Houchins’ general rule, applicable only to judicial proceedings and records. As a result, the right of access in circuits following this approach does not extend outside the factual confines of Richmond Newspapers and Globe Newspaper (or their close analogs). Part III asks, despite these cases, Does Houchins Matter? It suggests that the answer to that question should be No. Considering first the facts of the case, while many courts cite Houchins as holding that there is no general right of access protected under the First Amendment, the question in Houchins was a different one, namely, whether the press had a special right of access beyond that established for the public. Moreover, unlike several cases citing Houchins to support the total exclusion of the press and the public, Houchins was a case where substantial access was actually provided. Thus, the opinion in Houchins presupposed some level of access. Second, Houchins precedential weight is questionable for a number of reasons. Not only is there no majority opinion – even on a seven-Justice court, but there is also no controlling opinion. And, it can seriously be questioned whether the absolutist constitutional rule Houchins is often cited for should have been set down by a three-Justice plurality in a short Court. Third, the law subsequent to Houchins, to borrow a phrase, occupies the field of the right of access. This law not only dealt with the complete exclusion of the press, it provided standards to apply when dealing with claimed rights of access, and its holding is irreconcilable with the broad dicta in Houchins. Moreover, those later cases, especially Globe Newspaper, are a better doctrinal fit in the Court’s broader First Amendment cannon than is Houchins. They advance, as the Court put it in New York Times v. Sullivan, the “central meaning of the First Amendment”: “The right of free public discussion of the stewardship of public officials.” Houchins does just the opposite, cutting off information to inform that discussion. The paper finally argues that the practical effect of finding Houchins to be controlling is decidedly anti-democratic. Recent events have shown just how undemocratic the result of uncritical acceptance of Houchins can be. In the summer of 2019, the federal government, for weeks, kept journalists out of detention centers on the border. It did so despite shocking secondhand accounts of overcrowding of immigrants apprehended crossing the border, malnourishment, maltreatment, and the spread of disease among those apprehended. Once a photograph was finally released, outrage followed and public pressure was brought to bear. In 2020, the federal government argued under Houchins that it could exclude journalists from conflicts between Black Lives Matter protesters and federal law enforcement, despite allegations that the federal government was conducting unlawful police activities in localities and, quite literally, beating and carrying away citizens under the cover of dark. Again, the images from these protests were central to public debate about the government’s conduct. This paper then closes by recognizing that, despite all of this, vanquishing Houchins is an uphill battle. It seems unlikely that even though Houchins shouldn’t matter, absent guidance from the Supreme Court, lower courts in a significant number of Circuits around the country will continue to find that it does matter. Courts appear too afraid that recognizing a general First Amendment right of access to government proceedings and information will break down the doors of courthouses and government agencies and prisons around the country. Still, while the right of access as defined in cases like Richmond Newspapers and Globe Newspaper might be more difficult to apply than Houchins, it is the better approach as, unlike Houchins, it allows courts to consider the important interests at stake in any given case as opposed to simply shutting the government’s doors in the face of the public.

Download the article from SSRN at the link.

May 28, 2021 | Permalink