Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, April 22, 2019

Tushnet on the First Amendment and Trademark Registration @rtushnet

Rebecca Tushnet, Georgetown University Law Center, has published The First Amendment Walks Into a Bar: Trademark Registration and Free Speech, at 92 Notre Dame L. Rev. 381 (2016). Here is the abstract.

This Article analyzes the First Amendment arguments against section 2(a)’s disparagement bar with reference to the consequences of any invalidation on the rest of the trademark statute. My fundamental conclusions are that In re Tam is wrongly reasoned even given the Supreme Court’s increased scrutiny of commercial speech regulations, and that to hold otherwise and preserve the rest of trademark law would require unprincipled distinctions within trademark law. More generally, the Supreme Court’s First Amendment jurisprudence has become so expansive as to threaten basic aspects of the regulatory state; the result of subjecting economic regulations such as trademark registration to strict First Amendment scrutiny shows the damage that can be done thereby.

Download the article from the Law Review website at the link.

April 22, 2019 | Permalink

Tuesday, April 16, 2019

Wilson on Brandenburg in an Era of Populism @richardawilson7

Richard Ashby Wilson, University of Connecticut School of Law, is publishing Brandenburg in An Era of Populism: Risk Analysis in the First Amendment in the University of Pennsylvania Journal of Law & Public Affairs (2019). Here is the abstract.

We live in an era of populism, characterized by political polarization, speech that incites violence on social media, and an escalation in hate crimes. The regulatory framework established fifty years ago in Brandenburg is showing signs of severe strain. One of the central frailties of Brandenburg’s three-part test for incitement is the lack of guidance on how to evaluate whether a speech act is likely to incite an imminent offence. In the absence of clear direction on how to assess the possible causal effects of speech, judges often rely on outdated heuristics and misleading metaphors. This article is the first to draw on behavioral research to construct a systematic, evidence-based framework for analyzing the risk that inciting speech will result in imminent lawless action. The proposed matrix is then applied to the fact pattern in Sines v. Kessler, a civil suit arising from the events in Charlottesville in 2017.

Download the Article from SSRN at the link.

April 16, 2019 | Permalink

Travis on The "Monster" That Ate Social Networking? @fiulaw

Hannibal Travis, Florida International University College of Law, has published  The ‘Monster’ That Ate Social Networking? in Cyberspace Law: Censorship and Regulation of the Internet (Travis ed., Routledge 2013). Here is the abstract.

This chapter analyzes the privacy, intellectual property, competition policy, and human rights law implications of the rise of Facebook and the threat of a natural monopoly in social networking. Facebook instructed its users that it may provide friend lists and other profile information to third parties, as well as to law enforcement when it thinks public safety is at issue. The service warned users that it may disclose information without permission, but with “notice, such as by telling you about it in [a data use] policy.” In 2009, Facebook announced the settlement of a class-action lawsuit brought on behalf of users of Facebook as of November 2007, which involved privacy violations. Facebook subsequently became embroiled in patent litigation, democratization movements, and the mass surveillance of unsuspecting users, and this chapter briefly surveys its role in these controversies. The book in which it appears explores what the American Civil Liberties Union calls the ‘third era’ in cyberspace, in which filters "fundamentally alter the architectural structure of the Internet, with significant implications for free speech." Although courts and nongovernmental organizations increasingly insist upon constitutional and other legal guarantees of a freewheeling Internet, multinational corporations compete to produce tools and strategies for making it more predictable. When Google attempted to improve our access to information contained in books and the World Wide Web, copyright litigation began to tie up the process of making content searchable, and resulted in the wrongful removal of access to thousands if not millions of works. Just as the courts were insisting that using trademarks online to criticize their owners is First Amendment-protected speech, corporations and trade associations accelerated their development of ways to make Internet companies liable for their users’ infringing words and actions, potentially circumventing free speech rights. Finally, as social networking and content-sharing sites have proliferated, so have content-detecting tools for finding, flagging, and deleting content that makes one or another corporation or trade association fear for its image or profits. The book provides a legal history of Internet regulation since the mid-1990s, with a particular focus on efforts by patent, trademark, and copyright owners to compel Internet firms to monitor their online offerings and remove or pay for any violations of the rights of others.
Download the essay from SSRN at the link.

April 16, 2019 | Permalink

Wednesday, April 10, 2019

Georgia Lawmakers Introduce Bill To Create Ethics In Journalism Board and Standards To Hold Journalists Accountable For Their Reporting

Six Georgia state lawmakers think a set of ethical standards for journalists would be an excellent idea, and they've introduced a bill, "The Ethics in Journalism Act," to try to make it so.  Coverage from the Atlanta Journal-Constitution points out that the proposed standards would hold Georgia journalists to higher standards than the lawmakers themselves. Here's a link to the text of the bill, HB 734.

Coverage from the Atlanta Journal-Constitution, the Columbia Journalism Review  and the Washington Post.

April 10, 2019 | Permalink

Friday, April 5, 2019

Haupt on Sex and the First Amendment Through the Lens of Professional Speech @CEHaupt

Claudia E. Haupt, Northeastern University School of Law; Yale University, Yale Information Society Project, is publishing Sex and the First Amendment Through the Lens of Professional Speech in volume 17 of the First Amendment Law Review (2019). Here is the abstract.

First Amendment theory and doctrine apply in distinctive ways in the context of professional speech. Within the professional-client relationship, the law constrains professionals in various ways. Professionals are subject to licensing and malpractice regimes. They have fiduciary duties to their clients or patients. Because clients and patients seek professional advice in order to access knowledge they lack but need to make important decisions, professional advice must be comprehensive and accurate according to the insights of the relevant professional knowledge community. And dispensing professional advice within the professional-client relationship ought to remain free from state interference that seeks to prescribe its content in a way that contradicts professional knowledge. Implicit in the professional speech story are themes of sex, gender, sexual orientation, and religion. Much of professional speech doctrine in the courts has most recently developed around conversion therapy laws and legislation concerning reproductive rights. In part due to continued contestation surrounding these issues, the development of professional speech doctrine has been uneven and still lacks theoretical coherence. This Article charts the sites of conflict that typically arise in the professional context, and further unpacks how professional speech theory and doctrine apply in likely future conflicts around reproductive rights and transgender healthcare.

Download the article from SSRN at the link.

April 5, 2019 | Permalink

Thursday, April 4, 2019

Parliamentary Report on the Inquiry Into the Australian Music Industry

Just released by the House Standing Committee on Communications and the Arts: A report on the inquiry in the Australian music industry. Download it from links available here. 

April 4, 2019 | Permalink

Monday, April 1, 2019

Webber on Proportionality and Limitations on Freedom of Speech @GregoireWebber

Grégoire Webber, Queen's University, Faculty of Law, London School of Economics, Law Department, is publishing Proportionality and Limitations on Freedom of Speech in the Oxford Handbook of Freedom of Speech (Fred Schauer and Adrienne Stone, eds., Forthcoming).

‘Nothing is more certain in modern society’, Chief Justice Vinson wrote in the First Amendment case of Dennis v United States (1951), ‘than the principle that there are no absolutes’. That conviction was affirmed and developed in Justice Frankfurter’s concurring opinion, according to which ‘[t]he demands of free speech in a democratic society, as well as the interest in national security, are better served by candid and informed weighing of the competing interests’. Today, the confidence with which it is asserted that freedom of expression is not absolute and that competing interests are to be weighed and balanced in adjudicating free expression claims is even more resolute. Apex courts on all five continents adjudicate freedom of expression claims by denying that the freedom is absolute and by employing the principle of proportionality and its all-important balancing test. To demonstrate how much of the US debates from the 1950s and 1960s remain apposite today, I explore the appeal of proportionality and balancing for the adjudication of freedom of expression claims and review proportionality’s four evaluations. I conclude by revisiting the idea that freedom of expression cannot be absolute. It is an idea that is oft-repeated, but one that, I aim to show in brief, is based on a mistaken premise.

Download the essay from SSRN at the link.

April 1, 2019 | Permalink

Wednesday, March 27, 2019

Judge Grants Summary Judgment In Defamation Case Against Buzzfeed

U. S. District Court Judge Victor Marrero has granted Buzzfeed's request for summary judgment in Leidig v. Buzzfeed, agreeing with the defendant that the plaintiffs could not demonstrate that the statements they complained of were false or that they could demonstrate the required degree of fault. The plaintiffs, Michael Leidig and Central European News, had alleged that Buzzfeed had made defamatory statements about them in an article published on April 24, 2015, and titled "The King of Bullsh*t News."

Buzzfeed moved for summary judgment under Rule 56(A) and the judge granted it, writing that "[s]ummary judgment is appropriate if the evidence shows that 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" The judge also ntoed that "the burden of proving the falsity of a statement rests with the plaintiff." The plaintiffs were unable "to identify a genuine dispute of material fact" and contested only one paragraph that Buzzfeed published. They issued blanket denials and said they did not know where the quotes in one of the stories came from (p. 29).

Ruled the judge, "[A]ny defamatory fact gleaned from this headline manifests an implication supported by the substantial truth of the Article itself...The only possible additional defamatory fact is that Plaintiffs read, without any support, the reference to "king" in the headline to mean "largest." In context, such an interpretation derives not from the actual text of the headline, but from the hyperbolic spin Plaintiffs put on it, especially in their reference to "largest purveyors in the world." ...But, even if this construction reflected a fair reading, the difference between being the "largest" or a "large" purveyor of such news stories is immaterial in the context of such news stories is immaterial in the context of this Article."

Michael Leidig v. Buzzfeed, 16 Civ. 0542, U.S. D.C. (Southern District of N.Y.)

Read the entire ruling here.

March 27, 2019 | Permalink

Delfino on Pornographic Deepfakes--Revenge Porn's Next Act--The Case for Federal Criminalization @LoyolaLawSchool

Rebecca Delfino, Loyola Law School, Los Angeles, has published Pornographic Deepfakes — Revenge Porn’s Next Tragic Act – The Case for Federal Criminalization. Here is the abstract.

This could happen to you: You have appeared in digital photographs. Your pictures aren’t sexually explicit or revealing — they just are pictures of your daily life: spending time with friends or your vacation selfies. Like millions of people, these images have likely made their way onto the Internet when you shared them on social media. But what if someone decides they don’t like you? With an app available on any smartphone, the digital images of your face can be easily clipped from the pictures you posted the Internet and pasted onto the body of a person engaged in sexually explicit acts. Without your knowledge or consent, you become the “star” of a realistic, pornographic “deepfake.” This hypothetical reflects an emerging phenomenon in sex exploitation cybercrimes — it is the next tragic act in the unauthorized public dissemination of private sexually explicit photos or videos, known as “revenge porn.” What, if anything, can you do if you are inserted into a pornographic deepfake image or video against your will? Is it against the law to create, share, and spread falsified pornography on the Internet? At best, the answer to these questions is complicated and uncertain, and at worst, the answer is — no. Although the most effective deterrent for bad actors is one that criminalizes their behavior, there are currently no federal or state laws that criminalize the creation or distribution of pornographic deepfakes. And since deepfakes exist in cyberspace, they are not confined to an individual state jurisdiction. This is the first article to focus on the intersection of the law and pornographic deepfakes and to propose a legislative solution to the harms they unleash. A national response rooted in federal criminal law is required because everyone, everywhere is a potential deepfake victim — even you.

Download the article from SSRN at the link.

March 27, 2019 | Permalink

Tuesday, March 26, 2019

Skinner-Thompson on Recording as Heckling

Scott Skinner-Thompson, University of Colorado Law School, is publishing Recording as Heckling in volume 108 of the Georgetown Law Journal (2019). Here is the abstract.

A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy. This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public, while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, as a form of confrontation to authority, is also a direct method of expression. Likewise, efforts to maintain privacy while navigating public space may create an incubator for thought and future speech, and also serve as direct expressive resistance to surveillance regimes. As this Article explains, once the First Amendment values of both the right to privacy and the right to record are systematically understood, existing doctrine—including the concept of the “heckler’s veto”—can help restore balance between these sometimes competing forms of “speech,” permitting citizen recording of police as well as allowing government regulation of certain recordings that breach the privacy shields of other citizens. Just as a heckler’s suppression of another’s free speech justifies government regulation of the heckler’s speech, so too when recording (a form of speech) infringes on and pierces reasonable efforts to maintain privacy (also a form of expression), then the government may limit the ability to record. The heckling framework underscores that liberated and vibrant public space is contingent on a balance between the ability to gather information and maintain privacy in public, while also providing a doctrinally-grounded path for adjudicating those interests.

Download the article from SSRN at the link.

March 26, 2019 | Permalink

Monday, March 25, 2019

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

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

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

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

March 25, 2019 | Permalink

Stone on Freedom of Expression in Asia @Adrienne_Stone1

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

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

Download the essay from SSRN at the link.

March 25, 2019 | Permalink

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

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

March 25, 2019 | Permalink

Sunday, March 24, 2019

On PBS Tonight: "King Charles III"

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

March 24, 2019 | Permalink

Tuesday, March 19, 2019

UNC Center For Media Law and Policy Prize Competition Now Open

Competition now open:

 

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

 

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

 

 

 

 

March 19, 2019 | Permalink

Wednesday, March 13, 2019

Lidsky on "Whither the Fourth Estate?" @lidskylidsky

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

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

Download the essay from SSRN at the link.

March 13, 2019 | Permalink

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

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

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

Download the article from SSRN at the link.

March 13, 2019 | Permalink

Wednesday, March 6, 2019

Trimble on Copyright and Geoblocking @unlvlaw

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

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

Download the article from SSRN at the link.

March 6, 2019 | Permalink

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

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

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

Download the article from SSRN at the link.

March 6, 2019 | Permalink

Monday, March 4, 2019

EPIC Obtains FBI Media Guidelines for NSLs

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

March 4, 2019 | Permalink