Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 2, 2021

Goldman on Five Things To Know About Section 230 @ericgoldman @santaclaralaw @CIGIonline

Eric Goldman, Santa Clara School of Law, is publishing Five Things to Know About Section 230 at 2021 Centre for International Governance Innovation (CIGI). Here is the abstract.

This essay, written primarily for Canadian readers, explains five things that Canadians need to know about Section 230, the U.S. law that's become the legal foundation of the modern Internet.

Download the essay from SSRN at the link.

November 2, 2021 | Permalink

Monday, November 1, 2021

Carroll on Obstruction of Journalism @erinccarroll13 @denverlawreview @GeorgetownLaw

Erin Carroll, Georgetown University Law Center, is publishing Obstruction of Journalism in the Denver Law Review (2021). Here is the abstract.

Identifying oneself as press used to be a near-grant of immunity. It meant safer passage through all manner of dangerous terrain. But today, being recognizable as a journalist may be more likely to make one a target. Physical attacks against journalists in the United States increased nearly 1,300 percent in 2020. The rate of online violence against journalists is also soaring. This violence is aimed almost entirely at women, people of color, non-Christians, and non-straight journalists. It silences voices already relegated to the edges. Rather than letting our national conversation branch, the violence attempts to shear it to a white, male, Christian, and straight trunk. At its core, democracy requires that new voices can be heard so that stock stories—and the hierarchies they support—do not become entrenched. Journalists tell us these new stories about ourselves and our communities—stories that bring us into conversation with one another and help us to self-govern. Given this, violence against journalists is an assault on freedom of expression and democracy itself. And it is continuing with impunity. To address the systemic harm caused by the violence, this Article proposes a federal “obstruction of journalism” statute modeled on the obstruction of justice ones. Obstruction of justice is aimed at preserving the effective functioning of our justice system by criminalizing threats against that system. Likewise, obstruction of journalism would criminalize physical violence and particularly severe threats against reporters with the aim of protecting journalism, another system integral to a functioning democracy.

Download the article from SSRN at the link.

November 1, 2021 | Permalink

Wednesday, October 27, 2021

Volokh on Treating Social Media Platforms Like Common Carriers @unsealiecourt @UCLA_Law @JournalSpeech

Eugene Volokh, University of California, Los Angeles, School of Law, has published Treating Social Media Platforms Like Common Carriers? at 1 Journal of Free Speech Law 377 (2021). Here is the abstract.

The rise of massively influential social media platforms—and their growing willingness to exclude certain material that can be central to political debates—raises, more powerfully than ever, the concerns about economic power being leveraged into political power. There is a plausible (though far from open-and-shut) argument that these concerns can justify requiring the platforms not to discriminate based on viewpoint in choosing what material they host, much as telephone companies and package delivery services are barred from such viewpoint discrimination. PruneYard Shopping Center v. Robins, Turner Broadcasting System v. FCC, and Rumsfeld v. FAIR suggest such common-carrier-like mandates would be constitutional. On the other hand, platforms do have the First Amendment right to choose what to affirmatively and selectively recommend to their users.

Download the article from SSRN at the link.

October 27, 2021 | Permalink

Wright on Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent @IUMcKinney

R. George Wright, Indiana University School of Law, has published Sharpening the Focus of Free Speech Law: The Crucial Role of Government Intent. Here is the abstract.

Contemporary free speech law is typically misfocused. This misfocus serves neither the purposes underlying the institution of free speech nor any broader social rights and interests in conflict with freedom of speech. As a general matter, the adjudication of free speech claims should properly focus, centrally, on the intent of the regulating government. More specifically, courts should focus crucially on whether the government has, in enacting or enforcing its speech regulation, intended to suppress or disadvantage a presumed or actual idea or its expression. This sharpened focus would allow the courts to responsibly address a surprisingly broad range of free speech cases, with a substantially diminished need for attention to a number of artificial, if not unnecessary, judicial doctrines that have gradually been incorporated into the free speech case law.

Download the article from SSRN at the link.

October 27, 2021 | Permalink

Tuesday, October 26, 2021

Call For Applications: Legal Fellow--First Amendment Coalition

The First Amendment Coalition (FAC) seeks applicants to join our growing team for a full-time legal fellowship for one year, with the possibility of renewal for a second year.  We seek a highly motivated lawyer with excellent credentials and a demonstrated interest in the relevant areas of law.

The Legal Fellow will work with FAC’s Executive Director and Litigation Director to expand FAC’s strategic litigation program and our ability to provide expert legal assistance to working journalists and others, with a particular focus on those in traditionally underserved communities. FAC’s legal work is focused on enhancing public access to federal, state and local government records and proceedings and protecting the First Amendment rights of free speech and press. FAC also works to provide legal assistance to journalists served with subpoenas for their confidential sources and notes.

The Legal Fellow’s duties will include:
(1) researching, drafting, submitting, and following up on requests for government records under the California Public Records Act and the federal Freedom of Information Act;
(2) identifying, formulating and helping to bring cases in state and federal courts seeking access to government meetings and records, as well as to court proceedings and records;
(3) organizing, researching and drafting amicus briefs, and screening amicus briefs that FAC is asked to join;
(4) helping locate and then assisting pro bono counsel to represent subpoenaed journalists;
(6) other tasks to support FAC’s legal work.

Qualifications:  

The Legal Fellow must:

(1) have a J.D. from a U.S. accredited law school and have excellent academic credentials.  
(2) show a demonstrated interest in First Amendment law and/or FOIA and other access laws. A background in journalism is a plus.
(3) be a self-starter and detail-oriented, with the ability to work collegially and collaboratively on a small staff.
(4) have strong research, analytical and legal writing skills.

It is preferred that the Legal Fellow have one or more years of legal experience working in the relevant legal areas, in a judicial clerkship, law firm, or non-profit organization. California bar membership is required, though FAC will consider recent graduates who have applied for membership to the California bar or attorneys licensed elsewhere who are willing to apply for California bar membership.


We will consider candidates who are able to work remotely only but will give preference to candidates who are, or can be, based in the San Francisco Bay Area, and are able to work in FAC’s offices in San Rafael depending on the state of public health in 2022.

FAC is committed to a diverse and inclusive staff, one that reflects the state and country we serve.  Freedom of information, expression, and of the press are universal ideals but diversity of life experiences can make a big difference in how FAC identifies and litigates legal issues, serves our varied constituencies, and arrives at policy positions on the rights and ideals we care about. To that end, we deliberately seek applicants who can bring different perspectives and experiences to better inform our work promoting and defending free expression, a free press and the public’s right to know.

This is a full-time position.

Applicants are encouraged to submit materials as soon as possible; applications are preferred by November 24.  

Location:

San Rafael, California.

Salary:

$75,000-$85,000 depending on experience. Includes health benefits and eligibility for FAC’s 403(b) retirement plan, including a 5% employer match.

Starting date:

Late summer/early fall 2022.

How to apply:

Apply through the link on this page. Application materials are not accepted via email.

If you have any questions regarding FAC’s Legal Fellow position or the application process, please email legalfellow@firstamendmentcoalition.org.  

October 26, 2021 | Permalink

Monday, October 25, 2021

Penney on Understanding Chilling Effects @jon_penney @MinnesotaLawRev

Jon Penney, Citizen Lab, University of Toronto; Harvard University, Berkman Klein Center for Internet & Society; Osgoode Hall Law School, is publishing Understanding Chilling Effects in volume 106 of the Minnesota Law Review. Here is the abstract.

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical insights from law, privacy, and a range of social science fields toward a more comprehensive and unified understanding. I argue that conventional theories, based on fear of legal or privacy harm, are narrow, empirically weak, cannot predict or explain chilling effects in a range of different contexts, and neglect its productive dimensions—how chilling effects shape behavior. Drawing extensively on social science literature, I argue that chilling effects are best understood as a form of social conformity. Chilling effects arise out of contexts of ambiguity and uncertainty—like the ambiguity of public or private sector surveillance—but have deeper psychological foundations as well. In moments of situational uncertainty, people conform to, and comply with, the relevant social norm in that context. Sometimes this means self-censorship, but most often it means more socially conforming speech or conduct. A theory of chilling effects as social conformity has important normative, theoretical, and empirical advantages, including greater explanatory and predictive power, clarifying what chilling effects theory is for and what it produces, as well as providing a basis to navigate competing and differing chilling effect claims. It also has implications, I argue, for constitutional standing as well as the First Amendment chilling effects doctrine.

Download the article from SSRN at the link.

October 25, 2021 | Permalink

Laser and Goldman on Deepfakes, Privacy, and Freedom of Speech @ChristaLaser @ericgoldman

Christa Laser, Cleveland-Marshall College of Law, and Eric Goldman, Santa Clara School of Law, have published Deepfakes, Privacy, and Freedom of Speech at YourWitness Blog, Cleveland-Marshall College of Law, 2021. Here is the abstract.

Inauthentic media depictions can harm a person’s privacy and reputation and pose a risk to broader society, as well. “Deepfake” technology allows the creation of a type of inauthentic media using “deep machine learning” techniques, using a computer to quickly swap or simulate faces, voices, and movements. In a blog post on the YourWitness Blog (yourwitness.csulaw.org), Professor Christa Laser argues that Notice and Takedown procedures available in copyright law can be expanded to protect persons from deepfakes. Professor Eric Goldman thinks that such a reform would inhibit the dissemination of truthful information.
Download the post from SSRN at the link.

October 25, 2021 | Permalink

Koppelman on In Praise of Evil Thoughts @AndrewKoppelman @NorthwesternLaw

Andrew Koppelman, Northwestern University School of Law, has published In Praise of Evil Thoughts at 37 Social Philosophy & Policy 52 (2020). Here is the abstract.

Freedom of thought means freedom from social tyranny, the capacity to think for oneself, to encounter even shocking ideas without shrinking away from them. That aspiration is a core concern of the free speech tradition. It is not specifically concerned with law, but it explains some familiar aspects of the First Amendment law we actually have – aspects that the most prevalent theories of free speech fail to capture. It explains the prohibition of compelled speech, and can clarify the perennial puzzle of why freedom of speech extends to art and literature. It also tells us something about the limits of legal regulation, and about the ethical obligations of private actors.

Download the article from SSRN at the link.

October 25, 2021 | Permalink

Tuesday, October 19, 2021

Rozenshtein on Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment @ARozenshtein @UofMNLawSchool

Alan Z. Rozenshtein, University of Minnesota Law School, has published Silicon Valley's Speech: Technology Giants and the Deregulatory First Amendment at 1 Journal of Free Speech 337 (2021). Here is the abstract.

The technology giants that dominate Silicon Valley are facing unprecedented calls for regulation across a wide range of policy areas, ranging from content moderation and surveillance to competition, privacy, and consumer protection. But, as this Article explains, the First Amendment may stymie such efforts in ways that go far beyond the much-discussed “First Amendment Lochnerism.” Because technology companies’ core business activity is the facilitation of communication through computer code, they are particularly well suited to wield a deregulatory First Amendment. To avoid the First Amendment becoming a new, digital Lochner, this Article argues that First Amendment doctrine must sharply distinguish between arguments made on behalf of the First Amendment rights of users, which should be embraced, and those made on behalf of the companies themselves, which should be credited only if they advance the First Amendment interests of society, not merely those of the companies themselves. This Article concludes by using the recently enacted Florida law limiting social-media content moderation as a case study for how courts and other legal actors can determine what degree of First Amendment protections is appropriate for Silicon Valley’s speech.

Download the article from SSRN at the link.

October 19, 2021 | Permalink

Monday, October 18, 2021

Call For Applications: 2022 Scholarships for the Annual Conference of the ABA Forum on Communications Law

The Forum is pleased to announce that we are now accepting applications for scholarships to the 27th Annual Conference of the Forum on Communications Law, January 19-20 and February 24-26, 2022. This year’s Annual Conference will feature a virtual program, a full three-day in-person conference and host the first ever In-House Counsel Symposium.

The ABA Forum on Communications Law will award two or three full-ride scholarships to law students to attend the Forum's Annual Conference and the Media Advocacy Workshop. The scholarship includes your registration fee (including meals), lodging for the Forum conference and the Media Advocacy Workshop, airfare, and ground transportation.

To apply and learn more, click here.

October 18, 2021 | Permalink

Friday, October 15, 2021

Sprague on Normalizing De-Platforming: The Right Not to Tolerate the Intolerant @UWyoBiz

Robert Sprague, University of Wyoming College of Business, has published Normalizing De-Platforming: The Right Not to Tolerate the Intolerant. Here is the abstract.

Following the attack on the U.S. Capital in January 2021 tens of thousands of accounts, including the Facebook and Twitter accounts of then-President Donald Trump, were suspended or deleted. Section 230 of the Communications Decency Act grants online digital platforms immunity from liability for not only allowing third parties to post information online but also for decisions to remove that content. Since the “Great De-Platforming” of 2021, the viability of § 230 immunity has been called into question. This paper explores the legal boundaries in which online digital platforms operate. It argues that robust online speech requires that platforms must continue to enjoy immunity for their decisions on which content and users must be removed in order to ensure that intolerant speech does not squelch all other speech.

Download the article from SSRN at the link.

October 15, 2021 | Permalink

Wednesday, October 13, 2021

Corbin on The Pledge of Allegiance Revisited: Requiring Parental Consent @CarolineMCorbin @IndianaLJ

Caroline Mala Corbin, University of Miami School of Law, is publishing The Pledge of Allegiance Revisited: Requiring Parental Consent in the Indiana Law Journal. Here is the abstract.

Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states – Texas and Florida – students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children. The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the substantive due process rights of parents. These mandatory pledge laws are viewpoint-based and therefore presumptively unconstitutional. While the free speech rights of students are more circumscribed than adults, none of the established justifications for curtailing student speech rights at school apply in this case. On the contrary, forcing students to pledge against their will exemplifies all the harms of compelled speech. Finally, parents’ constitutional right to control the upbringing of their children is meant to protect parents from the state, not to empower parents to trample on the rights of their children. In the end, the parental permission rule is simply a pretext for the state’s own viewpoint-based compulsion.

Download the article from SSRN at the link.

October 13, 2021 | Permalink

Westkamp on Two Constitutional Cultures, Technological Enforcement and User Creativity: the Impending Collapse of the EU Copyright Regime? @QMIPRI

Guido Westkamp, Queen Mary Intellectual Property Research Institute, has published Two Constitutional Cultures, Technological Enforcement and User Creativity: the Impending Collapse of the EU Copyright Regime? Here is the abstract.

In Pelham, the EU Court of Justice and the German Federal Constitutional Court reached diametrically opposing conclusions on the relevance of freedom of art in copyright law. The different stances permit a speculative prediction – they can have immediate consequences for the predictable challenges against the new platform liability regime under Article 17 DSMD, and its associated dangers of wide-spread filtering and blocking. The article discusses the numerous constitutional implications with specific attention given to the respective interests affected by the new regime (authors, exploiters, users, platforms) in light of the divergent approaches from the perspective of what appears to be two rather conflicting constitutional cultures: specific perceptions of fundamental rights and proportionality under German law versus an approach tending to emphasise market integration under the EU legal order. Recent assertions by the German Constitutional Court redevising the division of competences between national and EU law permit the prediction of a disturbing future collision course between the two systems, with potentially massive implications for EU copyright law by and large.

Download the article from SSRN at the link.

October 13, 2021 | Permalink

Thursday, October 7, 2021

NPR Seeks Applications For Ishiyama Transparency in Government Legal Fellow @NPR

Ishiyama Transparency in Government Legal Fellow

Description

A thriving, mission-driven multimedia organization, NPR produces award-winning news, information, and music programming in partnership with hundreds of independent public radio stations across the nation. The NPR audience values information, creativity, curiosity, and social responsibility – and our employees do too. We are innovators and leaders in diverse fields, from journalism and digital media to IT and development. Every day, our employees and member stations touch the lives of millions worldwide.

Across our organization, we’re building a workplace where collaboration is essential, diverse voices are heard, and inclusion is the key to our success.

NPR seeks an outstanding recent law school graduate with an interest in First Amendment and media law to serve as its Ishiyama Transparency in Government Legal Fellow.  Under the guidance of NPR staff lawyers, the Legal Fellow works with NPR journalists to obtain access to public records that shed light on the operations of government.  The Legal Fellow will help reporters craft requests for records under the federal Freedom of Information Act (FOIA) and state public records laws, appeal inappropriate denials, request access to court records, and work with NPR staff lawyers and outside counsel in litigating FOIA, state public records act, and court-access cases.  Time permitting, the Legal Fellow may also assist NPR staff lawyers on other media law matters, such as reviewing amicus briefs, pre-publication review, counseling reporters on newsgathering, copyright, and First Amendment issues, defending content-related suits, and negotiating content-related agreements.  

This is a full-time, 2-year fellowship that will begin in August or early September of 2022.  The Legal Fellow will be paid $75,000 per year, plus benefits, including paid vacation.

RESPONSIBILITIES

  • Work with NPR journalists to request access to records under the federal Freedom of Information Act and state public records laws;
  • Work with NPR staff attorneys and outside counsel to prepare appeals from inappropriate denials of such requests;
  • Track federal FOIA and state public records requests and appeals across the NPR newsroom and the newsrooms of NPR Member stations engaged with NPR in collaborative reporting projects;
  • Work with NPR staff attorneys and outside counsel to pursue FOIA, state public records act, and court-access litigation, and, time permitting, to defend content-related lawsuits against NPR and NPR journalists;
  • Conduct legal research and advise NPR legal colleagues and reporters on FOIA, state public records act, court-access, and other media law issues;
  • Prepare memoranda, presentations, and other materials for internal and external audiences; and
  • Prepare training materials and work with staff lawyers and newsroom leaders to train journalists in effective use of FOIA and state public records laws.

QUALIFICATIONS

  • Outstanding academic credentials, including a J.D. from an ABA-accredited law school earned by June 2022; and
  • Bar membership in good standing in the District of Columbia, or eligibility to waive into the DC bar, by January 2023.

EDUCATION: Bachelor’s degree and J.D. from an ABA-accredited law school earned by June 2022 required.

REQUIRED SKILLS

  • Demonstrated interest in, and knowledge of, the federal Freedom of Information Act, state public records laws, court-access law, and media law, generally;
  • Superb oral and written communications skills, high ethical and professional standards, a commitment to journalism, and good judgment; and
  • Strong organizational skills and ability to manage multiple projects, to set and adjust priorities, and to work under pressure.

Does this sound like you? If so, we want to hear from you. All applications must include a resume and cover letter to be considered. 

https://recruiting.ultipro.com/NAT1011NATPR/JobBoard/af823b19-a43b-4cda-b6c2-c06508d84cf6/OpportunityDetail?opportunityId=d4db1ad8-c8e5-4563-a271-7c268c36d883

October 7, 2021 | Permalink

Tuesday, October 5, 2021

Applications For Position as Full-Time Legal Fellow Now Open at University of Georgia School of Law First Amendment Clinic @UGA1stAmClinic

From the UGA School of Law First Amendment Clinic (via Josh Moore at RCFP)

 

 

The University of Georgia School of Law’s First Amendment Clinic seeks a full-time, post-graduate Legal Fellow to start in August 2022.

The First Amendment Clinic’s mission is to defend and advance the rights of free speech, press, assembly, and petition via litigation and advocacy, while providing law students with the practice and real-world experience to become leaders on First Amendment issues.  The Clinic also serves as an educational resource on issues of open access and free expression in order to promote a better-informed citizenry. 

Under the direction of the Clinic Director, the Fellow will be expected to: (1) engage in substantial legal work including direct client representation encompassing intake/case evaluation, drafting and filing pleadings, taking discovery, motion practice, and court appearances; and (2) help to supervise law students by providing feedback on their written work, client interaction, and oral advocacy.  The Fellow will also assist with coalition building and managing referral relationships with other stakeholders committed to protecting expressive freedoms throughout Georgia and neighboring states; and participate in planning and conducting community education and outreach including presentations and panel events.  

Candidates must possess a JD degree from an ABA-accredited law school and will either be admitted to the Georgia Bar or  gain admission within 6 months of starting the position.  

Candidates should possess a strong academic record; excellent written and oral communication skills; strong organizational and time-management skills; an ability to build and maintain relationships with both students and community/professional partners; and a demonstrated commitment to public interest law. 

Preference will be given to candidates who have completed a judicial clerkship and/or who have litigation experience. 

Posting and application available here:  https://www.ugajobsearch.com/postings/223542

October 5, 2021 | Permalink

Tuesday, September 28, 2021

Schafer on Defending New York Times v. Sullivan @MatthewSchafer

Matthew Schafter, Fordham University School of Law, is publishing In Defense: New York Times v. Sullivan in volume 82 of the Louisiana Law Review. Here is the abstract.

New York Times v. Sullivan, the landmark Supreme Court case that helped shape our understanding of the First Amendment, is under attack. Twice now in opinions accompanying orders relating to certiorari, Clarence Thomas and, more recently, Neil Gorsuch have drawn into doubt the rule recognized in that case: that public official libel plaintiffs must plead and ultimately prove that a defendant published knowing the defamatory statement was false or with a high degree of awareness that it probably was. They either want to throw this “actual malice” rule out altogether or reexamine its implications and, potentially, prune it back. While some of these attacks are focused on more pragmatic concerns, a central attack, shared by both Thomas and Gorsuch, is that Sullivan is ahistorical and thus divorced from an original understanding of the First Amendment at the time of the Founding or the Reconstruction. Many commentators have seemingly accepted this assessment uncritically. This article challenges that view. It marshals substantial historical evidence that rebuts several of the justices’ specific historical arguments. More fundamentally though, through marshaling this evidence, it demonstrates that far from adopting the English common law of libel in the early United States, the Founders, federal and state legislatures, courts, and parties in litigation adopted a uniquely American understanding of freedom of the press - one where the severe rules of the English common law of libel were rejected so that citizens in a newly formed republican government could freely debate the conduct of those with power over the affairs of society.

Download the article from SSRN at the link.

September 28, 2021 | Permalink

Wednesday, September 22, 2021

Bhagwat on Whether Platforms Have Editorial Rights @JournalSpeech

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, has published Do Platforms Have Editorial Rights? at 1 Journal of Free Speech Law 97 (2021). Here is the abstract.

Social media today plays a central, albeit vexing and divisive role in our social and political culture. In response to the alleged failures of social media, a vast array of regulatory proposals have been advanced, and in some cases legislatively enacted, that would restrict the ways in which social media platform owners may moderate content on their platforms. These proposals include, among other things, imposing common carrier status on platforms (an approach endorsed by Justice Thomas in a recent separate opinion), requiring viewpoint-neutral content moderation policies, and restricting or conditioning platforms’ Section 230 immunities in various ways. What all of these proposals have in common is that they seek to impose legal restrictions on how social media platforms control the content that they host, refuse to host, display, and prioritize. These proposals are in deep tension with the idea that platforms themselves have First Amendment rights to control what content is available or visible on their platforms—what I call editorial rights. This article considers whether, and to what extent, social media platforms enjoy First Amendment editorial rights, and the implications of those rights for assorted regulatory initiatives. I begin by defining First Amendment editorial rights, and distinguishing between different kinds of editorial rights. I then examine how, and to what extent, the courts have extended editorial rights to new communications technologies. I next turn to the specific question of internet platform editorial rights, concluding that social media platforms should indeed enjoy substantial editorial rights, though probably fewer than prototypical holders of editorial rights such as print newspapers. I conclude by considering whether current regulatory proposals are consistent with these editorial rights.

Download the article from SSRN at the link.

September 22, 2021 | Permalink

Friday, September 17, 2021

Murray on Newspaper Expungement

Brian Murray, Seton Hall Law School, has published Newspaper Expungement in volume 116 of Northwestern University Law Review Online, 2021. Here is the abstract.

Expungement law has made great strides over the past two decades, with state-level reforms broadening the types of criminal records eligible for expungement. Further, expungement has been extended beyond arrestees to those who have been convicted, thereby promising to alleviate some of the burdens of reentry. Nevertheless, expungement remedies only touch officially held information or public data possessed by different branches of government. This means that private actors, if they possess the information, are beyond the reach of expungement law. Such actors, whether individuals, background check companies, newspapers, or other firms, enjoy the ability to continue to hold and use such information. This results in a whack-a-mole problem for the successful expungement petitioner who has achieved the relief that the state allows, only to see its efficacy thwarted by private activity with the same information. Recently, one private actor, newspapers, has begun to set up processes that resemble formal expungement. Newspaper editors have responded to the limits of formal expungement by constructing their own procedures for evaluating whether to erase, seal, or alter information that is damaging to the reputation of those who have encountered the criminal justice system. This development has occurred on the heels of the right to be forgotten movement in Europe, which has gained little traction in the United States. This Essay contextualizes the phenomenon of newspaper expungement, situating it within a larger legal backdrop, before describing the stated activities and aspirations of some of the newspapers themselves. It concludes by charting how such practices relate to broader critiques and goals of criminal justice reform.

Download the article from SSRN at the link.

September 17, 2021 | Permalink

Thursday, September 9, 2021

Long on All I Really Need To Know About Defamation Law In the 21st Century I Learned From Watching Hulk Hogan @UTKLaw

Alex B. Long, University of Tennessee College of Law, has published All I Really Need to Know About Defamation Law in the 21st Century I Learned From Watching Hulk Hogan, as University of Tennessee Legal Studies Research Paper No. 418.

If there is a body of law that is ripe for reappraisal in light of changing times, it is defamation law. Changes in how news is reported and entertainment is produced have blurred some of the traditional legal rules regarding the distinction between actionable fact and non-actionable fiction. At the same time, advances in technology and changes in society have caused some – most notably Supreme Court Justices Thomas and Gorsuch – to question whether the traditional New York Times Co. v. Sullivan standard used in defamation cases should remain good law. In 2000, professional wrestling legend Hulk Hogan sued World Championship Wrestling after he was allegedly defamed in the ring by another performer during a broadcast in one of the most controversial incidents in the history of professional wrestling. The case raised some of the same issues that courts face today as they attempt to navigate a new landscape in which it is not always easy to distinguish real news from fake news and fact from opinion, parody, fiction, and hyperbole. This Essay explores the Hulk Hogan defamation litigation and how the decision illustrates some of the shortcomings of the courts’ approach to defamation cases involving publications the blur reality and fiction.

Download the article from SSRN at the link.

September 9, 2021 | Permalink

Tuesday, September 7, 2021

Conrad on Fake News, Personal Attacks, and Ideological Media Run Amok--It Is Time For Fairness Doctrine 2.0 @FordhamGSB

Mark A. Conrad, Fordham University, Gabelli School of Business, has published Fake News, Personal Attacks, and Ideological Media Run Amok – It is Time for Fairness Doctrine 2.0. Here is the abstract.

From 1949 to 1987, a regulation known as the “Fairness Doctrine” required radio and television stations to offer response time to those attacked by a broadcast editorial or commentary and required radio and television stations to offer differing views of issues of public concern. The Supreme Court upheld this rule against a First Amendment challenge, noting that the unique aspects of broadcasters justified this requirement. Ultimately, the rule was rescinded by the Federal Communications Commission on the ground that it was no longer needed because the growth of broadcasters rendered it outdated. The FCC determination also questioned its constitutionality. In more recent years, the expansion and influence of talk radio and cable news commentators coupled with the election of Donald Trump as president created a more toxic political environment with certain commentators employing distortions and even lies in their broadcasts and cablecasts. This paper advocates a return of the Fairness Doctrine, crafted to include cable television and streamed broadcasts deriving from cable as an effective way to allow opposing viewpoints for audiences that are effectively limited from access to those views because of the of ideological bent of the radio stations and cable services they watch. The article will demonstrate that a resurrection of the Fairness Doctrine is important for the future of the electorate and would be constitutionally valid.

Download the article from SSRN at the link.

September 7, 2021 | Permalink