Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, August 31, 2023

Koningisor and Lidsky on First Amendment Equilibrium @ckoningisor @VirginiaLawRev @LidskyLidsky

Christina Koningisor, UC Law, San Francisco, and Lyrissa Barnett Lidsky, University of Florida College of Law, are publishing First Amendment Disequilibrium in volume 109 of the Virginia Law Review. Here is the abstract.

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a “First Amendment equilibrium,” one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes. Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has been eviscerated in recent years—hemorrhaging talent, expertise, resources, and legitimacy. Wide swaths of the country now qualify as “news deserts,” lacking any local press presence at all. Public trust in the mainstream media has also plummeted. At the same time, many internal checks no longer constrain the ability of the executive branch to guard its secrets. This combination of a hollowed-out press and an insufficiently checked executive has given rise to a First Amendment disequilibrium, unsettling the foundations of this critical segment of constitutional law. This Article describes the causes and consequences of this disequilibrium and argues that recalibration is essential to fostering effective democratic self-governance.

Download the article from SSRN at the link.

August 31, 2023 | Permalink

Botero Arcila and Griffin on Social Media Platforms and Challenges for Democracy, Rule of Law and Fundamental Rights @bea_botero @sciencespo

Breatriz Botero Arcila and Rachel Griffin, both of Institut d'Etudes Politiques de Paris (Sciences Po), have published Social Media Platforms and Challenges for Democracy, Rule of Law and Fundamental Rights. Here is the abstract.

This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, examines risks that contemporary social media - focusing in particular on the most widely-used platforms - present for democracy, the rule of law and fundamental rights. The study focuses on the governance of online content, provides an assessment of existing EU law and industry practices which address these risks, and evaluates potential opportunities and risks to fundamental rights and other democratic values.

The full text is not available from SSRN. Here is a link to the EU Parliament page.

August 31, 2023 | Permalink

Friday, August 25, 2023

Kang on Why the Actual Malice Test Should Be Eliminated @UNM_Law @fsulawreview

John M. Kang, University of New Mexico School of Law, is publishing Why the Actual Malice Test Should Be Eliminated in volume 50 of the Florida State University Law Review (2023). Here is the abstract.

Under traditional common law, a plaintiff could recover damages for libel if she could prove that the defendant had published a factual statement about the plaintiff that tended to injure the plaintiff’s reputation. The plaintiff, at most, was required to show negligence to recover damages for libel. While the amount of money that any given plaintiff could recover in damages was uncertain, one thing was clear: the First Amendment would not protect libel. In 1964 in New York Times v. Sullivan, the Supreme Court radically upended this received view of libel as unprotected speech. According to Sullivan, if the plaintiff were a public official and the statement said about him were a matter of public concern, the plaintiff would have to prove “actual malice.” Under Sullivan’s actual malice test, the plaintiff faced the daunting task of having to prove that the defendant made the libelous statement knowing that it was false or with reckless indifference as to its truth or falsity. The actual malice test thus afforded extraordinary and unprecedented protection for political speech which was libelous. While the notion of protecting libel might seem morally objectionable, the Sullivan Court was adamant that doing so was essential to protect the right of political criticism. For the Sullivan Court argued that the actual malice test would quell the fear of self-censorship that speakers would likely suffer in the absence of the actual malice test. The Court was not alone in its support of the actual malice test. Since its inception in Sullivan, the actual malice test has been celebrated as perhaps the most monumental contribution to First Amendment jurisprudence. Going against the grain, this Article calls for the wholesale elimination of the actual malice test.

Download the article from SSRN at the link.

August 25, 2023 | Permalink

Mohr on The Irish Media and Comparative Perspectives on the Creation of the 1922 Constitution of the Irish Free State @UCDLawSchool

Thomas Mohr, Sutherland School of Law, University College of Dublin, has published The Irish Media and Comparative Perspectives on the Creation of the 1922 Constitution of the Irish Free State. Here is the abstract.

This article attempts to recover perceptions of the Constitution of the Irish Free State at the time of its creation through analysis of Irish newspapers published in 1922. The comparative analysis of contemporary perceptions is intended to serve as a counterweight to perceptions of this Constitution presented in scholarship written in the years after 1922 that have been heavily influenced by knowledge of subsequent events.

Download the article from SSRN at the link.

August 25, 2023 | Permalink

Thursday, August 24, 2023

Albert on Imagining a Community: Obscenity's History and Moderating Speech Online @KendraSerra @Harvard_Law @YJoLT @[email protected]

Kendra Albert, Harvard Law School, has published Imagine A Community: Obscenity’s History and Moderating Speech Online at 25 Yale L.J. & Tech. Special Issue 59 (2023). Here is the abstract.

This essay walks through the history of the “community” in obscenity’s community standards doctrine, arguing that the Supreme Court’s debates and disagreements about how to regulate speech in that context presage more modern debates over content moderation online. They begin by sketching the community standards doctrine’s history, from the dozens of cases of the 1950s-70s to how networked technologies from 1989 to the early 2000s exacerbated earlier debates about which community’s standards matter, and how they should be applied. Albert then turns to what happened when the Justice Department ended prosecutions of pornography producers for obscenity, and how the shadow regulation of payment providers has come to replace the (flawed) legal doctrine.

Download the essay from SSRN at the link.

August 24, 2023 | Permalink

Friday, August 11, 2023

Uddin on Provocative Speech in French Law: A Closer Law at Charlie Hebdo @asmauddinesq @CathULaw @FIULAWREVIEW

Asma Uddin, Catholic University School of Law, has published Provocative Speech in French Law: A Closer Look at Charlie Hebdo in the Florida International University Law Review Symposium 2015. Here is the abstract.

At 11:30 a.m. on January 7, 2015, brothers Cherif and Said Kouachi, masked, dressed in black, and armed with Kalashnikov assault rifles, approached the offices of Charlie Hebdo, a satirical French magazine. They forced one of the magazine’s cartoonists to enter the code to the newsroom door. Upon entering the room, the men opened fire and killed the editor, Stephane Charbonnier, and four Charlie Hebdo cartoonists along with several others. The gunmen shouted, “We have avenged the Prophet Muhammad” and “God is Great” in Arabic as they called out the names of the journalists. The gunmen escaped by car. During the chase, Amedy Coulibaly, a friend of the two terrorists, killed a policewoman in Montrouge, and on January 9, took several people hostage at a kosher supermarket at Porte de Vincennes. He threatened to kill the hostages unless the Kouachi brothers were allowed to go free. At around 5:00 p.m. that day, the police stormed the supermarket and killed Coulibaly, while another operation launched at the same time killed the Kouachi brothers, who were hiding in a printing firm in Dammartin-en-Goele. Both individuals and the French government responded zealously to the attack on Charlie Hebdo. Social media became saturated with the hashtag #JeSuisCharlie, or #IAmCharlie, as French citizens and individuals abroad rushed to show solidarity with the cartoonists of Charlie Hebdo and the cause of freedom of speech. The French government commenced “aggressive enforcements” of Law No. 2014-1353 of November 13, 2014, an anti-terrorism law that was rarely used until the weeks prior to the attacks, against anyone who spoke out against the Charlie Hebdo cause. Among those prosecuted for their speech was Dieudonné M’Bala M’Bala, a French comedian, who was arrested for “defending terrorism” in a Facebook status that read, “Tonight, as far as I’m concerned, I feel like Charlie Coulibaly.” The statement is a combination of the slogan “Je suis Charlie” (“I am Charlie”) and “Amedy Coulibaly,” the name of the gunman who terrorized the kosher supermarket, and appears to imply sympathy with the terrorists. He was fined $37,000. Various commentators and scholars have pointed out the double standard in the French government’s treatment of speech, especially in the wake of the Charlie Hebdo attacks. The New Yorker noted that “[t]he juxtaposition of . . . the celebration of a magazine that routinely publishes cartoons considered blasphemous and offensive by many of the world’s Muslims and the muscular prosecution of a relentlessly provocative black comedian” made the hypocrisy glaringly obvious. Similarly, Jonathan Turley reflected in the Washington Post about the spontaneous rally in support of Charlie Hebdo after the attacks: “[O]ne could fairly ask what they were rallying around. The greatest threat to liberty in France has come not from the terrorists who committed such horrific acts this past week but from the French themselves, who have been leading the Western world in a crackdown on free speech.” Indeed, the French government has a history of using its speech laws to curtail the speech of journalists, comedians, celebrities, and ordinary citizens alike. That same tendency of restricting speech came into play in the wake of the Charlie Hebdo attacks, when the French government simultaneously punished critics for their speech and glorified Charlie Hebdo as a symbol of freedom of speech. At the core of the French double standard is its inconsistent distinction between protection and punishment of provocative speech. In Part I, this paper will look briefly at how international law treats provocation, in particular, Articles 19–20 of the International Covenant on Civil and Political Rights (ICCPR). Then, Part II will look at the ways French speech law embodies the aforementioned double standard because of its failure to adopt the international standard on provocation. The paper will conclude by advocating for a more uniform, more protective approach to speech—one that will bring French law into conformity with international law.

Download the article from SSRN at the link.

August 11, 2023 | Permalink

Walsh on Why Neutral Isn't Neutral: An Analysis of Misinformation and Sentiment in the Wake of the Capitol Riots @wvumediacollege

Daniel Walsh, Reed College of Media, has published Neutral Isn’t Neutral: An Analysis of Misinformation and Sentiment in the Wake of the Capitol Riots. Here is the abstract.

January 6th, 2021 was a significant moment in the history of the United States of America. Protestors stormed the Capitol building over the results of the 2020 presidential election in which Joseph R. Biden defeated incumbent president Donald J. Trump. The Capitol riots were partially incited by the presence of misinformation on social media and was an example of the power misinformation has. This study presented two questions. Question one pertains to the sentiment analysis of verified Twitter users and their sentiment towards Trump. Question two pertains to analyzing tweets from verified accounts for misinformation between the dates of January 6th, 2021 and January 13th, 2021. To answer these questions, a machine learning sentiment analysis was conducted on 13 randomly selected Twitter accounts with noted liberal and conservative political leanings to assess their sentiment towards Trump. The accounts were analyzed and then categorized as being either anti-Trump or Trump-neutral. Once the accounts were appropriately categorized a collection of their tweets mentioning Trump were documented to create a consecutive day sample to examine their reporting and analyze how misinformation differed between the two. The results of this study show that one, sentiment analysis is a useful tool for examining and categorizing tweets and their overall accounts based on their sentiments and two, that there was a notable difference in the spread of misinformation between the two categories.

Download the article from SSRN at the link.

August 11, 2023 | Permalink

Wednesday, August 9, 2023

Yoo on Network Slicing and Net Neutrality @pennlaw

Christopher S. Yoo, University of Pennsylvania Law School; Annenberg School for Communication; School of Engineering and Applied Science, has published Network Slicing and Net Neutrality Telecommunications Policy, Special Issue on "5G Policy and Beyond" as U of Penn, Inst for Law & Econ Research Paper No. 23-26. Here is the abstract.

Whether network slicing complies with the net neutrality rules currently in force in Europe and previously applicable in the U.S. presents a key issue in the deployment of 5G. In many ways, both regimes frame the issues in a similar manner, with the exceptions for reasonable traffic management and specialized services likely to play the most important roles. Both regimes also focus on similar considerations, including the requirement that measures be based on technical rather than business considerations and the distinction between measures aimed at improving the performance of the entire network or specific applications, although both distinctions are problematic in some respects. Both regimes also emphasize application agnosticism and end-user choice, with European law finding the former implicit in the latter. At the same time, European and U.S. law reflect some key differences: the regimes cover different types of entities, frame the issues in terms of nondiscrimination versus throttling and paid prioritization, take different positions on whether measures must be limited to temporary or exceptional circumstances, and place different weight on the impact of the rules on investment and on the relevance industry standards. The relatively undeveloped state of both legal regimes means that the ultimate answer must await enforcement decisions and actions by NRAs, and any subsequent judicial challenges to these decisions.

Download the article from SSRN at the link.

August 9, 2023 | Permalink

Friday, August 4, 2023

Satta on Shantay Drag Stays: Anti-Drag Laws Violate the First Amendment @mark_satta @waynestate

Mark Satta, Wayne State University, is publishing Shantay Drag Stays: Anti-Drag Laws Violate the First Amendment in the Georgetown Journal of Gender and the Law. Here is the abstract.

So far in 2023, at least twenty states have introduced bills aimed at limiting, eliminating, or otherwise suppressing drag performances. Several of those bills have turned into state laws. One of those laws has already been found to violate the First Amendment. This article explains why virtually any law aimed specifically at restricting, suppressing, or banning drag performances violates the First Amendment. The key reasons for this are as follows. First, drag performances are expressive conduct protected by the First Amendment. Second, drag performances generally do not fall into any uncovered category of speech, such as obscenity. Third, drag performances express viewpoints. Fourth, the Supreme Court has set an extremely high standard for permitting viewpoint discrimination—even for speech not covered by the First Amendment. Laws aimed at restricting drag performances do not meet this high standard because, among other reasons, such laws are not precisely tailored. Thus, laws that pick out drag performances for restriction over and above other forms of covered (or even uncovered) speech violate the First Amendment. After offering these arguments, this article examines how these First Amendment facts impact anti-drag laws in Tennessee, Arkansas, and Montana. These three case studies provide further evidence for the conclusion that anti-drag laws are generally unconstitutional by examining issues of overbreadth and vagueness, with an emphasis on how vague and overbroad anti-drag laws like these impermissibly chill the speech and expression of drag performers and of trans people.

Download the article from SSRN at the link.

August 4, 2023 | Permalink

Thursday, August 3, 2023

Ananthakrishnan, Basavaraj, Karmegam, Sen, and Smith on Book Bans in American Libraries: Impact of Politics on Inclusive Content Consumption @uttara_a @Ananya_Sen_ @CarnegieMellon @UW @GeorgeMasonU

Uttara M. Ananthakrishnan, University of Washington School of Business, Naveen Basavaraj, Carnegie Mellon University School of Public Policy and Management, Sabari Rajan Karmegam, George Mason University, Ananya Sen, Carnegie Mellon University, and Michael D. Smith, Carnegie Mellon University School of Public Policy Management, have published Book Bans in American Libraries: Impact of Politics on Inclusive Content Consumption. Here is the abstract.

Book bans have become increasingly prevalent and politically polarizing in the United States. Still, their impact on book consumption is unclear – political consumerism is usually a response to corporations and not policies put forward by officials and legislators specifically to restrict consumption in specific geographical areas. Additionally, given the polarizing nature of these book bans, little is known about their broader political impact. Although the decision to ban books is made at the local level, these events receive extensive media coverage at the national level and on social media, which could impact readership and impact at a broader scale. A priori, the impact of these book bans on the consumption of such (inclusive) content is ambiguous. On the one hand, books banned in select locations garner national attention, which can increase the readership of these books (a phenomenon popularly known as the “Streisand effect”). On the other hand, the sensitive nature of these book bans could have a chilling effect on the consumption of these books for parents or teachers to limit controversy in a polarized environment. In this study, we use a novel, large-scale dataset of US library book circulations and evaluate the effect of book bans on the consumption of banned books. Using a staggered difference-in-differences design, we find that the circulation of banned books increased by 12% compared to comparable non-banned titles after the ban. We also find that the consumption of books increases in states which don’t enact any bans. Our results demonstrate that books that are talked about more on Twitter after the ban experience higher consumption, suggesting a link between social media chatter and political consumerism. Further, books from lesser-known authors experienced increased consumption after the ban compared to well-known authors, potentially due to increased information about these new authors in the conversations around the bans. We also find that book bans have a tangible political impact through campaign donations - Democratic Party candidates in Blue states attract significantly more donations following the ban events than Democratic Party candidates in Red states. However, Republican Party candidates don’t see any increase in donations. Our results are robust across several demanding specifications. We use alternate data from Goodreads to show that book bans increase the number of reviews, ratings, and reviews mentioning ban-related terms in the period after the ban, further demonstrating the robustness of our results.

Download the article from SSRN at the link.

August 3, 2023 | Permalink

Barbas on Introduction: Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan @UBSchoolofLaw @baldycenter

Samantha Barbas, Buffalo Law School; Director, Baldy Center for Law and Social Policy, University at Buffalo Law School, has published Introduction: Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan. Here is the abstract.

The following is an excerpt from Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan (University of California Press, 2023), which tells the full story of New York Times v. Sullivan, the landmark Supreme Court case that grew out of segregationists' attempts to quash reporting on the civil rights movement. In its 1964 decision, the Supreme Court held that a public official must prove "actual malice" or reckless disregard of the truth to win a libel lawsuit, providing critical protections for free speech and freedom of the press. Drawing on previously unexplored sources, including the archives of the New York Times Company and civil rights leaders, the book tracks the saga behind one of the most important First Amendment rulings in history. Actual Malice situates the case within the turbulent 1960s and the history of the press, alongside portraits of the lawyers, officials, judges, activists, editors, and journalists who brought and defended the case.

Download the Introduction from SSRN at the link.

August 3, 2023 | Permalink

Bowman on The (Re)Definition of Free Speech @Prof_KBowman @MSUCollegeofEd

Kristine L. Bowman, Michigan State University, is publishing The (Re)Definition of Free Speech in volume 38 of the Journal of Law and Politics. Here is the abstract.

The largely unwritten civic constitution is shaped by legislators, judges, bureaucrats, and others including ordinary citizens and social movement groups. I contend that it is also shaped by college and university presidents when they speak publicly about constitutional values such as free speech. Over the past decade, college and university presidents have issued statements about free speech and other controversial matters with increasing frequency. In this Article, I analyze how university presidents describe the concept of free speech to their campuses and thus engage in the work of constitutional development and find that university presidents describe free speech in two primary ways. What I identify as the “Traditionalist” approach hews closely to legal doctrine, including an institutional role focused on neutrality and often institutional silence. What I identify as the “New Democratic” approach focuses more on the lived experience of campus community members and requires a greater institutional role to ensure all have meaningful access to spaces of learning and knowledge creation. These varying approaches enact distinct understandings of free speech, align with different understandings of equality, and illustrate the consequences of employing one meaning of free speech over another.

Download the article from SSRN at the link.

August 3, 2023 | Permalink

Monday, July 31, 2023

Soucek on Speech First, Equality Last @BRSoucek @UCDavisLaw @ArizStLJ

Brian SOuce, University of California, Davis, School of Law, is publishing Speech First, Equality Last in volume 55 of the Arizona State Law Journal (2023). Here is the abstract.

Universities have been put in an impossible situation. They are liable under nondiscrimination laws if they allow hostile speech to interfere with someone’s education, but they are increasingly said to be liable under the Free Speech Clause if they do anything to stop speech before that point. Put simply, universities are liable for acting until the moment when they are liable for not having acted. This conundrum - what this Article calls the Double Liability Dilemma - is the result of remarkably successful litigation brought in courts across the country by a recently formed, conservative free-speech organization called Speech First. Three courts of appeals, with a fourth perhaps soon to come, have recently enjoined universities from enforcing their harassment policies. These schools now find themselves unable to act to counteract hostile speech based on race or sex before it is too late. To see the Double Liability Dilemma is to see that these cases simply cannot be rightly decided - and to wonder how courts or commentators might ever think otherwise. Providing the first close look at litigation that is reshaping speech and harassment regulation throughout American higher education, this Article highlights the procedural mechanisms Speech First has used to push courts into taking what critical race theorists have long referred to as the “perpetrator perspective.” By contrast, this Article shows how a broader perspective, taking both sides of the dilemma into account, forces us to rethink the meaning and reach of the First Amendment on college and university campuses.

Download the article from SSRN at the link.

July 31, 2023 | Permalink

Monday, July 24, 2023

Carroll on Policing Protest: Speech, Space, Crime, and the Jury @JennyECarroll1 @YaleLJournal @UALawSchool

Jenny E. Carroll, University of Alabama School of Law, is publishing Policing Protest: Speech, Space, Crime, and the Jury in volume 133 of the Yale Law Journal. Here is the abstract.

Speech is more than just an individual right – it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. Dissent and disobedience in the form of such protests is not without consequences, however. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights – either directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal statutes and ordinances adversely affect marginalized or dissenting speech. Despite their general classification as constitutionally permissible time, place, or manner restrictions, this Feature concludes that enforcement of such statutes contributes to a subordinating First Amendment landscape, disproportionately burdening some speakers and some messages more than others. To address these concerns, this Feature makes three critical normative claims. First, scholars and courts alike have failed to properly prioritize access to spaces. This, in turn, carries a second normative claim: the current consideration of access to space as a forum of speech ignores the reality that presence at times is the message. To force a speaker to an alternative forum through the enforcement of criminal law is effectively to regulate the message out of existence. Finally, this Feature proposes a novel First Amendment defense when criminal charges implicate the defendant’s speech activity. This proposed defense provides a mechanism to vindicate the overlooked First Amendment consequences of such charges and empower citizen jurors to engage in community-based decision-making about the value of speech.

Download the article from SSRN at the link.

July 24, 2023 | Permalink

Thursday, July 20, 2023

Keck on Free Speech in an Age of Democratic Backsliding (Review Essay) @tmksyracuse @ICONnect_blog @MaxwellSU

Thomas M. Keck, Syracuse University, Maxwell School of Citizenship and Public Affairs, is publishing Free Speech in an Age of Democratic Backsliding in the International Journal of Constitutional Law (2023). Here is the abstract.

This review essay draws on recent books by Richard L. Hasen and Jacob Mchangama to reflect on the difficult tradeoffs faced by civil liberties advocates in the context of democratic backsliding.

Download the essay from SSRN at the link.

July 20, 2023 | Permalink

Murray on Generative AI Art: Copyright Infringement and Fair Use @ukcollegeoflaw

Michael D. Murray, University of Kentucky College of Law, has published Generative AI Art: Copyright Infringement and Fair Use. Here is the abstract.

The discussion of AI copyright infringement or fair use often skips over all of the required steps of the infringement analysis in order to focus on the most intriguing question, “Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?” and then the discussion skips further ahead to, “Would the AI have a fair use defense, most likely under the transformative test?” These are relevant questions, but in isolation from the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This skipping of topics and stages of the infringement analysis does not train our attention to a properly accused party or entity whose actions prompt the question. The leaping from a question of infringement in the creation of training datasets to the creation of foundation models that draw from the training data to the actual operation of the generative AI system to produce images makes a false equivalency regarding the processes themselves and the persons responsible for them. The questions ought to shift focus from the persons compiling the training dataset used to train the AI system and the designers and creators of the AI system itself to the end users of the AI system who actually conceive of and cause the creation of images. The analysis of infringement or fair use in the generative AI context has suffered from widespread misunderstanding concerning the generative AI processes and the control and authorship of the end-user. Claimants, commentators, and regulators have made incorrect assumptions and inaccurate simplifications concerning the process, which I refer to as the Magic File Drawer theory, the Magic Copy Machine theory, and the Magic Box Artist theory. These theories, if they were true, would be much easier to envision and understand than the actual science and technology that goes into the creation and operation of a contemporary visual generative AI system. Throughout this Article, I will attempt to clarify and correct the understanding of the science and technology of the generative AI processes and explain the different roles of the training dataset designers, the generative AI system designers, and the end-users in the rendering of visual works by a generative AI system. Part II will discuss the requirements of a claim of copyright infringement including each step from the copyrightability of the claimant’s work, the doctrines that limit copyrightability, the requirement of an act of copying, and the infringement elements. Part III will summarize the copyright fair use test paying particular attention to the purpose and character of the use analysis, 17 U.S.C. § 107(1), and the current interpretation of the “transformative” test after Andy Warhol Foundation v. Goldsmith, particularly in circumstances relating to technology and the use of copyrighted or copyrightable data sources. Part IV will analyze potential infringement or fair use by the creators of generative AI training datasets. Part V will analyze potential infringement or fair use by the creators of visual generative AI systems. Part VI will analyze potential infringement or fair use by the end-users of visual generative AI systems. For all their complexity, visual generative AI systems are tools that depend on an end-user who conceives of and designs the image and provides the system with a prompt to set the generative process in motion. The end-users are responsible for crafting the prompt or series of prompts used, for evaluating the outputs of the generative AI, for adjusting and editing the iterations of images offered by the AI system, and ultimately for selecting and adopting one of the images generated by the AI as the final image. The end-users then make further decisions about the actual use and its function and purpose for the images the end-users selected and adopted from the outputs of the AI. In the course of working with the AI tool to try to produce a certain image, an end-user might steer the system to produce a work that could, under an infringement analysis, be regarded as potentially infringing, which would lead us again to the fair use analysis based on the end-user’s use of the image.

Download the article from SSRN at the link.

July 20, 2023 | Permalink

Fagundes and Contreras on Private Ownership of Public Facts: Docudramas, Deals, and Life Story Rights @Dave_Fagundes @contreraslegals

Dave Fagundes, University of Houston Law Center, and Jorge L. Contreras, University of Utah College of Law, are publishing Private Ownership of Public Facts: Docudramas, Deals, and Life Story Rights in the UC Davis Law Review. Here is the abstract.

From Elizabeth Taylor to Mike Tyson, celebrities have claimed ownership of their personae. But while the right of publicity and other laws give individuals the right to control commercial exploitation of their images, voices, mannerisms and taglines, the law stops short of recognizing a property interest in the events of their lives. On the contrary, the First Amendment protects producers of expressive works when telling non-defamatory stories about real people. The intuition that exists among celebrities and lay persons alike that individuals own their “life stories” has been fueled by the decades-old Hollywood practice of “acquiring” life story rights from the subjects of docudrama features based on actual events, sometimes for large sums. In this Article, we explore, critique, and propose to remedy the growing privatization of life stories and show that while the life story deal may seem to reflect beneficial private ordering, it in fact creates a significant negative externality by converting an essential part of the public domain into private property, thereby upsetting the balance of shared and proprietary information on which our systems of free speech and creative expression depend. We offer a parsimonious solution to this problem: Congress should enact a new federal statute barring the enforcement of state rights of publicity against fact-based creative productions such as books, films, and television programs, provided that, for private individuals, their name, image and likeness are altered to protect their identities. Having a single, clear rule that operates ex ante provides uniformity and clarity that will secure the status of life story facts as part of the public domain without limiting the legal protection of individuals’ dignitary, reputational and privacy interests.

Download the article from SSRN at the link.

July 20, 2023 | Permalink

Thursday, July 13, 2023

Erickson and Bunker on The Jurisprudence of Tradition: Constitutional Gaslighting and the Future of First Amendment Free Speech Doctrine @WidenerJournal @csuf @UofAlabama

Emily Erickson, California State University, Fullerton, and Matthew D. Bunker, University of Alabama, have published The Jurisprudence of Tradition: Constitutional Gaslighting and the Future of First Amendment Free Speech Doctrine at 29 Widener L. Rev. 139 (2023). Here is the abstract.

When the U.S. Supreme Court had handed down its transformation of Second Amendment rights in 2022’s New York State Rifle and Pistol Assoc., Inc. v. Bruen, it did so using a methodology that resembles originalism, but is in fact a version of traditionalism. A number of cases decided that term make clear that the Court’s conservative supermajority intends to work dramatic change upon the constitutional landscape, with this ‘history and tradition’ methodology at the helm. And Bruen signals another ominous possibility: In Bruen’s majority opinion, Justice Clarence Thomas drew a misleading parallel between that case’s traditionalist method and First Amendment’s free-speech doctrine, suggesting that the two were congruent. This conflation of Second Amendment and First Amendment methodology raises concerns as to the majority’s future intentions toward free speech doctrine. If the majority plans to reconfigure free-speech law in Bruen’s image, the future of free expression in the United States looks grim. This article first explores traditionalism as a constitutional method, distinguishing it from originalism. Next, it analyzes the Bruen decision and unpacks its methodology, as well as its conflation of gun rights and free speech. It then turns to First Amendment free speech doctrine, examining the ostensible traditionalism already embedded there, as well as the paucity of actual First Amendment tradition prior to the 20th century. After offering some predictions about how a Bruen-inspired free speech jurisprudence might alter existing law, it briefly describes post-Bruen developments, then presents some concluding perspectives on this deeply troubling potential shift in constitutional law.

While the article is not available online from the journal, it is available on LEXIS and WESTLAW.

July 13, 2023 | Permalink

Friday, June 30, 2023

Wright on A Free Speech-Based Response to Media Polarization @IUMcKinney

R. George Wright, Indiana University School of Law (Indianapolis), has published A Free Speech-Based Response to Media Polarization. Here is the abstract.

The degree of polarization, distrust, and animosity in the political elements of our social media have reached remarkable levels. But any attempt to address the relevant problems that requires legal enforcement inevitably raises serious issues of free speech and free press. Relying instead on fact checkers has its own numerous, substantial, and inevitable limitations, some of which parallel the very problems sought to be addressed. More promising are political social media reforms, akin to that proposed herein, that are voluntary, generally pluralistic and critical, reflective of the relevant social science evidence, and unlikely to raise problems of free speech and freedom of the press.

Download the article from SSRN at the link.

June 30, 2023 | Permalink

Wednesday, June 28, 2023

Yildirim, Van Houweling, Lazarova, and Vezina on Freedom to Share: How Government's Data Sharing Policies Concerning Publicly Available Data Impact Academic Research and Journalism in the Public Interest @eozgeyildirim @mollysvh @Brigitte_Vezina @creative

Emine Ozge Yildirim, KU Leuven, Centre for IT & IP Law, Molly Shaffer Van Houweling, University of California, Berkeley, School of Law, Ana Lazarova, Sofia University St. Kliment Ohridski, and Brigitte Vezina, Creative Commons, have published Freedom to Share: How Government’s Data Sharing Policies Concerning Publicly Available Data Impact Academic Research and Journalism in the Public Interest. Here is the abstract.

Our societies rely on quality academic and scientific research and journalism to thrive and prosper. A necessary condition for public-interest research and journalism is access to data unencumbered by unnecessary legal barriers. Commemorating the ten-year anniversary of the tragic death of data access activist and digital rights champion Aaron Swartz, this article examines the policy and legal landscapes in the European Union and in the United States regarding access to data. It offers recommendations to strike a necessary balance between data protection and copyright, on the one hand, and research and journalism freedoms on the other, as a means to support better sharing of data in the public interest.

Download the article from SSRN at the link.

June 28, 2023 | Permalink