Media Law Prof Blog

Lombardi on Why We Cannot Safeguard Public Interest Journalism Through Copyright Alone @aberdeenuni

Claudio Lombardi, University of Aberdeen, has published Why We Cannot Safeguard Public Interest Journalism through Copyright Alone. Here is the abstract.

Creators of news and literary works of a journalistic nature are the backbone of any ‘information society’. They provide fast and reliable information for the general public and keep in check the power that be. Yet, despite the abundance of demand for information and the popularity of old and new media outlets, newspapers have seen their profitability plummet in the last 20 years. By controlling the main revenue sources of this industry, digital platforms have gained a position of superior bargaining power vis-à-vis press publishers. The EU legislature has resolved to rebalance the bargaining power between them by granting an ancillary right to press publishers, whereby press publishers can demand the payment of copyright licenses to digital platforms. This should increase their bargaining power and thus lead to fairer agreements. What is at stake here is not only the survival of the press industry (or at least part of it) but the integrity of the right to information that the public derives from the principle of freedom of speech. This article posits that copyright alone is insufficient to protect free speech and the right to information by unpacking the nature and history of the new neighboring right introduced by the EU Directive 790/2019. Moreover, the article considers the relationship between copyrights and competition law in this area. It postulates that competition law, despite its essential role as an effective remedy against anticompetitive abuses, can have little structural effects in this industry in the long term. At the national level, the EU Directive 790/2019 will need to be combined with other regulatory solutions, which are here briefly surveyed.

Download the article from SSRN at the link.

Norton on What 21st-Century Free Speech Law Means for Securities Regulation @ColoLaw @NotreDameLRev

Helen L. Norton, University of Colorado Law School, is publishing What 21st-Century Free Speech Law Means for Securities Regulation in volume 99 of the Notre Dame Law Review. Here is the abstract.

Securities law has long regulated securities-related speech--and until recently, it did so with little, if any, First Amendment controversy. Yet the antiregulatory turn in the Supreme Court's 21st-Century Free Speech Clause doctrine has inspired corporate speakers' increasingly successful efforts to resist regulation in a variety of settings, settings that now include securities law. This doctrinal turn empowers courts, if they so choose, to dismantle the securities regulation framework in place since the Great Depression. At stake are not only recent governmental proposals to require companies to disclose accurate information about their vulnerabilities to climate change and other emerging risks, but also longstanding governmental efforts to inform and protect investors while serving broader public interests. This Article takes seriously this threat to the securities law framework and defends that framework's constitutionality. It describes why and how securities law regulates speech to inform and protect investors--functions that also achieve public-regarding goals by facilitating stable and efficient markets, encouraging corporate accountability, and ameliorating the systemic economic risks of market collapse. It then maps this securities law framework onto First Amendment law, demonstrating why and how this regulatory framework aligns with Free Speech Clause theory and doctrine. Key to this alignment are securities law's listener-centered functions. More specifically, this Article makes the case for identifying securities-related speech as a category of speech unprotected by the First Amendment. The Court has long considered the regulation of certain categories of speech as exempt from First Amendment review, and it has more recently announced a backwards-looking methodology for determining those categories that turns on identifying a longstanding regulatory tradition of restricting speech with a category without triggering First Amendment scrutiny. We can trace a lengthy regulatory tradition of responding to the informational asymmetries endemic to securities markets by prohibiting companies from making certain false and misleading statements and by requiring them to make accurate disclosures. This Article demonstrates how securities law remains consistent with this tradition (and thus regulates within a category of unprotected speech) through disclosures that inform investors' diverse approaches for assessing value and risk, including emerging risks like climate change. While maintaining that the securities market is sufficiently distinct from other markets in its susceptibility to information asymmetries to justify recognizing securities-related speech as its own category of unprotected speech, this Article also considers the possibility that the Court will instead turn to an entirely separate doctrine for considering the constitutionality of securities law: the very different rules that apply to the government's regulation of commercial speech. Here too securities regulation's listener-centered functions do important First Amendment work, as much of the securities law framework satisfies review under commercial speech doctrine so long as we continue to tether commercial expression's constitutional protection to that expression's capacity to inform listeners' decisionmaking.

Download the article from SSRN at the link.

Ofcom Closes Investigation Into Anjoa Andoh's Comment About "Terribly White" Balcony Without Further Action

Ofcom, the UK regulatory agency, says that despite receiving thousands of complaints over a remark by Anjoa Andoh during Charles III's coronation ceremony, it will not pursue the matter. The agency has investigated Ms. Andoh's remark, which concerned the "terribly white" balcony on which the Royal Family greeted the nation after the coronation. Ofcom said in part:

While we understand some viewers had strong feelings about this comment, after careful consideration we have concluded that the comment was a personal observation which was part of a wide-ranging panel discussion which also touched on other diversity-related topics, and which contained a range of viewpoints.

Our decision to not pursue these complaints further also takes into account broadcasters’ and guests’ right to freedom of expression.

 

 

Andoh is known for her role as Lady Agatha Danbury on the Netflix series Bridgerton and Queen Charlotte, among other roles.

More here from the Guardian.

 

 

Hine on Whether Content Moderation in the Metaverse Could Be a New Frontier to Attack Freedom of Expression @EmmieHine

Emmie Hine, University of Bologna, Department of Legal Studies, is publishing Content Moderation in the Metaverse Could Be a New Frontier to Attack Freedom of Expression in Philosophy and Technology. Here is the abstract.

This Commentary examines the challenges faced by metaverse platforms in cross-border content moderation, focusing on the implications for freedom of expression and nondiscrimination. It highlights the difficulties in determining what to remove for which users as well as how to do so, which has serious implications for freedom of expression and our shared sense of reality. Proto- metaverse platforms such as Roblox and Minecraft face similar questions, but have not yet encountered major cross-jurisdictional issues because, as looking at traditional social media platforms reveals, content moderation is not merely a question of law and policy, but also of geopolitics and government priorities. To avoid a “Lowest Common Denominator Effect” where freedom of expression is infringed upon worldwide and discrimination is entrenched, this Commentary argues that metaverse platforms must clarify their moderation policies, assess their entry into specific markets based on local laws and their own values, and be prepared to exit overly restrictive markets.

Download the article from SSRN at the link.

New Arkansas Law Forcing Librarians To Restrict Access To Books "Harmful to Minors" Draws Constitutional Challenge

From Bloomberg Law: 

A new Arkansas law that exposes librarians to criminal liability for making books deemed “harmful to minors” available to them drew a constitutional challenge Friday from public library systems, their patrons, bookstores, and free speech groups who say the measure violates their First Amendment rights.

 

 

Read more here.

 

Read Act 372 of 2023 here.

More about the act and opposition to it here.

Fayetteville Public Library, other Arkansas Groups File Lawsuit Against "Restrictive" Censorship Laws

Arkansas Librarians Sue To Block New Law

Newly Published; Gary Watt, The Making Sense of Politics, Media, and Law (Cambridge University Press, 2023) @CambridgeUP @Warwick_Law

Newly published:

 

Gary Watt, University of Warwick, The Making Sense of Politics, Media, and Law (Cambridge University Press, 2023) (Law in Context).

Here from the publisher's website is a description of the book's contents.

• From Trump's 'make America great again' to Johnson's 'build back better', performative politicians use The Making Sense to persuade their public audiences. Law 'makers' do it too: A courtroom trial is a 'truth factory' in which facts are not found but forged. The 'court of popular opinion' is another such factory, though its processes are often flawed and its products faulty. Where courts of law aim to make civil peace, 'trial by Twitter' makes civil strife. Even in 'mainstream' media, journalists make news for public consumption, so that all news is to an extent 'fake news'. In a world of making, how can we separate craft from craftiness? With insights from disciplines including law, politics, rhetoric, media studies, psychology, sociology, marketing, and performance studies, The Making Sense of Politics, Media, and Law offers a constructive way to approach controversies from transgender identity to cancel culture. This title is also available as open access on Cambridge Core.

  • Offers the general and scholarly reader an engaging and fresh way to navigate contemporary controversies by appreciating the practices through which social facts and truths are made
  • Brings new perspectives to a range of academic disciplines (law, politics, media, rhetoric, performance, theatre, psychology, sociology etc) by reading them in terms of an integrated sense of making (encompassing such distinct aspects as invention, creation, and production)
  • Employs extensive topical examples and references to popular media, including hit television shows, film, theatre, documentaries, social media to illustrate the pervasiveness of rhetorical performance in everyday, social, political, and legal contexts
  • This title is also available as open access on Cambridge Core

   

   

   

 

Krotoszynski and Roberts on Reimagining First Amendment Remedies @UALawSchool @capricelroberts @LSULawCenter @IowaLawReview

Ronald J. Krotoszynski, Jr., University of Alabama School of Law, and Caprice L. Roberts, Louisiana State University Law Center, are publishing Reimagining First Amendment Remedies at 109 Iowa Law Review 1 (2023/2024) (forthcoming). Here is the abstract.

Since the Warren Court’s landmark First Amendment decisions of the 1960s, the Supreme Court has aggressively deployed the Free Speech Clause to provide broad substantive protections for expressive freedoms. These rules, in theory, should effectively safeguard the marketplace of political ideas and facilitate both speaker and audience autonomy. No matter how broadly fashioned, however, a constitutional rule in reality is only as strong as the remedies available to enforce it—and far too often, First Amendment remedies today are either woefully weak or effectively nonexistent. When a would-be First Amendment plaintiff cannot obtain a meaningful remedy for a proven constitutional violation, the substantive rule will not effectively safeguard expressive activities against government censorship. In several important areas of First Amendment law, available remedies are inadequate. Government employees who want to blow the whistle on unlawful, or even patently unconstitutional, government conduct must risk discharge and face obstacles in securing future employment. So too, pretextual arrests of journalists engaged in newsgathering activities significantly chill such activity going forward—yet no effective remedy currently exists for this kind of targeted government effort to suppress reporting on matters of public concern. Finally, local zoning ordinances often silence disfavored would-be speakers based on the content of their message through highly selective signage bans—thereby preventing the intended audience from receiving messages they would like to see (including both commercial and clearly non-commercial messages that relate to candidates, ballot issues, politics, and matters of public concern). The Supreme Court and all courts must fashion and enforce effective First Amendment remedies. This Article argues that the Supreme Court’s entire theory of First Amendment remedies requires both reimagining and reinvigoration. Existing law only imperfectly redresses harms to a would-be speaker and often fails to remedy harms to the audience at all. The interest of We the People in hearing, seeing, or reading a message needs to be an important part of the remedial analysis (but today just isn’t). When the government censors speech, it harms not only the would-be speaker, but also the would-be audience. This Article recalibrates the relationship between harm and remedy via a theoretical framework: (1) enduring equity, (2) bounded discretion, (3) proportional relief, (4) correlative function, and (5) tangible remedies. First Amendment remedies law must redress effectively both personal and collective expressive injuries. This Article proposes pathways and equitable remedies that will safeguard First Amendment rights comprehensively and effectively—thereby facilitating the process of democratic deliberation.

Download the article from SSRN at the link.

Rauch on Defamation as Democracy Tort @Harvard_Law @PennLRev

Daniel Rauch, Harvard Law School, is publishing Defamation as Democracy Tort in volume 172 of the University of Pennsylvania Law Review. Here is the abstract.

Times v. Sullivan sets a striking principle: without (nearly unobtainable) proof of “actual malice,” public officials can’t win defamation suits. If public persons’ reputations conflict with free discourse, the latter wins. Sullivan is iconic. But it’s increasingly beleaguered, said to immunize lies that tear our polity apart. These fears are well-founded. The Sullivan Regime is broken. But understanding why starts not, as critics suggest, from new technology or constitutional doctrine. It starts from the tort of defamation. What interest does the defamation tort protect? What injury does it redress? Leading accounts look to property, dignity, or other values. But these miss something vital. In our polity, a central, serious harm defamation redresses is democratic disempowerment: the destruction of political efficacy in one’s community. Defamation victims (say, those falsely branded sex offenders) lose more than honor. They lose their ability to be credibly heard, participate in civic discussion, have their voices matter. They are discredited. And in our democracy, where participation is core to personhood, this wrong is profound indeed. This insight shows Sullivan, in balancing vigorous press against defamation suits, wasn’t trading “speech” against “non-speech” (say, politicians’ dignity). Rather, the balance was among speech priorities - vigorous press, and democratically enabled People. Silencing by lawsuits, versus silence by slanders. But Sullivan saw speech on just one side. And in our Viral Age, this error causes crisis: a wave of democratic disempowerment, crashing hardest at democracy’s front lines (school boards, election workers, journalists). Fortunately, seeing the problem shows how we might solve it. End “actual malice” for most public persons, but end all defamation suits brought by the very powerful. Make swifter merits decisions, but re-empower lay juries. Surer defeats for nuisance plaintiffs, but stark damages for egregious defamers. Bold, paradoxical shifts to protect both vigorous critique and democratic participation. And which help tame broader discontents—from baseless conspiracies to bigoted cybermobs. Lastly, most broadly, seeing defamation this way hints at a new private law paradigm: one taking democratic efficacy as a core personal interest (like our bodies, lands, and psyches). Today, this interest faces new threats (like lawless “deplatformings”) but is ill-served by old protectors (like constitutional doctrines). In this context, democracy torts - civil remedies to guard our democratic efficacy - hold great promise.

Download the article from SSRN at the link.

Lande on The Deplorable Vanishing of Fox's Trial @MizzouLaw

John Lande, University of Missouri School of Law, has published The Deplorable Vanishing of Fox's Trial as University of Missouri School of Law Legal Studies Research Paper No. 2023-06. Here is the abstract.

About 20 years ago, there was a flurry of worries about “the vanishing trial.” Professor Marc Galanter described trials as having the potential for “deep accountability” where facts are exposed and responsibility is assessed. The Dominion Voting Systems lawsuit against Fox Corporation and Fox News is just the kind of case in which a trial would have provided deep accountability. Instead, according to New York Times columnist David French, the settlement enables Fox to avoid accountability and “pay for the privilege of continued corruption” as just another cost of doing business. The court implored the parties to settle, which is not necessarily problematic in garden-variety commercial cases that involve no significant public interest. But the Dominion lawsuit involved a paramount public interest, and the court should not have pressed the parties to settle.

Download the paper from SSRN at the link.

Balkin on Free Speech Versus the First Amendment @YaleLawSch @UCLALawReview

Jack M. Balkin, Yale University Law School, is publishing Free Speech Versus the First Amendment in the UCLA Law Review. Here is the abstract.

The digital age has widened the gap between the judge-made doctrines of the First Amendment and the practical exercise of freedom of speech. Today speech is regulated not only by territorial governments but also by the owners of digital infrastructure -- for example, broadband and cellular providers, caching services, app stores, search engines, and social media companies. This has made First Amendment law less central and the private governance of speech more central. When the free speech interests of digital companies and their end-users conflict, the major beneficiaries of First Amendment rights are likely to be the former and not the latter. Digital companies will try to use the First Amendment to avoid government regulation, including regulation designed to protect the free speech and privacy interests of end-users. In response, internet reformers on both the left and the right will attempt to de-constitutionalize internet regulation: They will offer legal theories designed to transform conflicts over online speech from First Amendment questions into technical, statutory and administrative questions. In the U.S., at least, de-constitutionalization is the most likely strategy for imposing public obligations on privately-owned digital companies. If successful, it will make the First Amendment even less important to online expression. The speed and scale of digital speech have also transformed how speech is governed. To handle the enormous traffic, social media companies have developed algorithmic and administrative systems that do not view speech in terms of rights. Accompanying these changes in governance is a different way of thinking about speech. In place of the civil liberties model of individual speech rights that developed in the twentieth century, the emerging model views speech in hygienic, epidemiological, environmental, and probabilistic terms. The rise of algorithmic decisionmaking and data science also affect how people think about free expression. Speech becomes less the circulation of ideas and opinions among autonomous individuals and more a collection of measurable data and network connections that companies and governments use to predict social behavior and nudge end-users. Conceived as a collection of data, speech is no longer special; it gets lumped together with other sources of measurable and analyzable data about human behavior that can be used to make predictions for influence and profit. Meanwhile, the speed and scale of digital expression, the scarcity of audience attention, and social media's facilitation of online propaganda and conspiracy theories have placed increasing pressure on the standard justifications for freedom of speech, including the pursuit of truth and the promotion of democracy. The gap between the values that justify freedom of speech and what the First Amendment actually protects grows ever wider. In response, some scholars have argued that courts should change basic First Amendment doctrines about incitement, defamation, and false speech. But it is far more important to focus on regulating the new forms of informational capitalism that drive private speech governance and have had harmful effects on democracy around the globe. The digital age has also undermined many professions and institutions for producing and disseminating knowledge. These professions and institutions are crucial to the health and vitality of the public sphere. Changing First Amendment doctrines will do little to fix them. Instead, the task of the next generation is to revive, reestablish and recreate professional and public-regarding institutions for knowledge production and dissemination that are appropriate to the digital age. That task will take many years to accomplish.

Download the article from SSRN at the link.

Carroll on The Violence of Free Speech and Press Metaphors @erinccarroll13 @GeorgetownLaw @WLULawReview

Erin Carroll, Georgetown University Law Center, is publishing The Violence of Free Speech and Press Metaphors in the Washington and Lee Law Review (2023). Here is the abstract.

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us. The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition and force order the rungs on a ladder climbing toward truth. Power and violence are at home in the speech marketplace. Unsurprisingly, these same characteristics animate the defining metaphor for a key free speech institution: the press is a “watchdog.” In First Amendment law, the press’s role is to attack government for its misdeeds. As linguists have shown, metaphors are not simply rhetorical icing. They shape human understanding and behavior—sometimes in dangerous ways. The marketplace and watchdog metaphors have this power, and with it they have helped to create a speech environment where violence can feel routine. No easy fix exists for the violence in our public sphere. But new metaphors could help us reconceptualize the ways we communicate. This Article offers up two sets of metaphors--forest metaphors and universe metaphors--and test drives them in potential cases involving the press.

Download the abstract from SSRN at the link.

McKechnie on Defaming the President @AF_Academy

Douglas B. McKechnie, US Air Force Academy, is publishing Defaming the President in volume 49 of the Mitchell Hamline Law Review (2023). Here is the abstract.

Former President Trump has a history of relying on defamation lawsuits as a means to confront public criticism. At the same time, he has lamented the significant burden the Supreme Court imposed on public figures’ defamation claims in New York Times v. Sullivan. Standing alone, his criticism poses little threat to the Court’s actual malice standard and its protection of an “uninhibited, robust, and wide-open” debate about public officials. However, Justices Thomas and Gorsuch have joined the former President’s demands to overturn Sullivan. If their demands are heeded, public officials’ defamation claims will no longer be encumbered by the actual malice standard’s First Amendment principles. Yet Presidents are a unique sort of public official whose constitutional status carries its own distinctive First Amendment concerns. This article posits that because of their unmatched position within the constitutional scheme, the First Amendment prohibits Presidents’ defamation claims. I begin the article detailing the actual malice standard, former President Trump’s history of defamation claims, and the political and judicial calls for the actual malice standard to be overturned. The article then moves to an exploration of the First Amendment’s impact on a President’s defamation claims. I argue that the same First Amendment principles that prohibit the government from pursuing seditious libel claims also apply to a President’s defamation claims. I posit that when considering Presidents’ unitary control over executing the business of the state, coupled with their absolute immunity from civil litigation, their defamation claims impose incomparable burdens on the essential debates regarding self-governance. For these reasons, Presidents’ defamation claims are barred by the First Amendment.

Download the article from SSRN at the link.

Schubert on Democratization Through "Cancel Culture"--Three Levels of Artistic Freedom @ka_schubert

Karsten Schubert, Humboldt University Berlin, is publishing Democratization Through 'Cancel Culture'—Three Levels of Artistic Freedom in Konfliktuelle Kulturpolitik, Politologische Aufklärung – konstruktivistische Perspektiven (Anke Schad-Spindler, Friedericke Landau-Donnelly, Stefanie Fridrik, and Oliver Marchart, eds., Wiesbaden, 2023).

While ‘cancel culture’ is commonly regarded as limiting freedom of speech and artistic freedom, this article proposes a new understanding of ‘cancel culture’ as emancipatory norm-setting that is key for democratization. On a non-governmental level of the self-regulation of the art world, the argument for artistic freedom ignores the fact that art is permeated by power.The introduction of ‘politically correct’ norms leads to a justified redistribution of such power. On a parastatal level of public broadcasting and state cultural funding, neutrality is necessary but should be understood materially to include marginalized voices. Restrictions of freedom of speech and artistic freedom do occur on the state-level of hate-speech regulation. Here, the danger of a potential shift from emancipatory regulation to a harmful restriction is particularly virulent, as a discussion of the German BDS ban shows.

Download the essay from SSRN at the link.

Rimmer on Waiting For Copyright To Expire: The Legal Endgame of Samuel Beckett @DrRimmer

Matthew Rimmer, Queensland University of Technology (QUT), has published Waiting for Copyright to Expire: The Legal Endgame of Samuel Beckett. Here is the abstract.

Taking a comparative approach, this paper provides a legal commentary on the copyright disputes over the work of Samuel Beckett. In particular, it focuses upon legal and policy debates over the copyright term and the public domain; the operation of economic rights and defences such as fair dealing and fair use; and the comparative application of moral rights. This paper highlights conflicts in respect of copyright law and dramatic works within the performing arts community. It looks at the respective interests of playwrights, dramaturges, directors, producers, performers, theatre companies, and the viewing public. This paper considers the larger questions in respect of the intersection of intellectual property and human rights – looking at the impact of copyright law upon freedom of speech, artistic expression, and censorship. In particular, the conflicts over the performance of the work of Samuel Beckett raise questions about intellectual property, sexual discrimination, and racial discrimination.

Download the article from SSRN at the link.

Newly Published: Landmark Cases in Privacy Law (Hart) @paulwragg78 @pcoelaw @hartpublishing

Newly published:

Landmark Cases in Privacy Law (Paul Wragg and Peter Coe, eds., Hart Publishing, 2023) (Landmark Cases series). Here from the publisher's website is a description of the book's contents.

This new addition to Hart's acclaimed Landmark Cases series is a diverse and engaging edited collection bringing together eminent commentators from the United Kingdom, the United States, Australia, Canada, and New Zealand, to analyse cases of enduring significance to privacy law.

The book tackles the conceptual nature of privacy in its various guises, from data protection, to misuse of private information, and intrusion into seclusion. It explores the practical issues arising from questions about the threshold of actionability, the function of remedies, and the nature of damages.

The cases selected are predominantly English but include cases from the United States (because of the formative influence of United States' privacy jurisprudence on the development of privacy law), Australia, Canada, the Court of Justice of the European Union, and the European Court of Human Rights. Each chapter considers the reception and application (and, in some instances, rejection) outside of the jurisdiction where the case was decided.

 

 

Paul Wragg is Professor of Media Law at the School of Law, University of Leeds, UK.

Peter Coe is Associate Professor in Law at Birmingham Law School, University of Birmingham, UK.

Discount Price: £60 / $80

 Special offer from the publisher: Order online at www.bloomsbury.com  – use the code GLR AP3UK for UK orders and GLR AP3US for US orders to get 20% off!

Dickinson on Journalism in the Age of Clickbait @gmdickinson @HULawJournal

Gregory M. Dickinson, St. Thomas University School of Law; Stanford Law School, is publishing Journalism in the Age of Clickbait in volume 66 of the Howard Law Journal. Here is the abstract.

Martha Minow’s Saving the News lays bare a dramatic shift in American news reporting—the decline of local, in-depth, and investigative journalism in favor of attention-grabbing and politically divisive stories that circulate wildly on social media. Her book proceeds to navigate potential constitutional obstacles to reform by showing how, although the First Amendment prohibits Congress from abridging the freedom of speech, it is no bar where Congress acts instead to strengthen speech. This Book Review extends Minow’s analysis by considering the human and technological roots of the social-media phenomenon: The Americans who choose to read vapid, misleading news stories and the algorithms that circulate them. Sensationalist journalism thrives not by force-feeding us rotten content, but by employing algorithms to plumb the depths of our minds and feed us the very salacious content we love most. A deeper Big Tech battle thus rages within each one of us, between what we want and what we know is good for us. Social-media reform can succeed by empowering us to choose well.

Download the review from SSRN at the link.

Coleman on The Anatomy of Cancel Culture @Wisconsin Law School @JournalSpeech

Franciska Coleman, University of Wisconsin Law School, has published The Anatomy of Cancel Culture at 2 Journal of Free Speech Law 205 (2022). Here is the abstract.

In this paper, I undertake a qualitative exploration of how social regulation of speech works in practice on university campuses, and of the extent to which social regulation in practice affirms or undermines the stereotypes and caricatures that characterize the cancel-culture wars. I first summarize the two narratives that anchor public debates over the social regulation of speech—consequence culture and cancel culture. I then describe the social regulation of speech and its five phases: dissemination, accusation, pillory, sanction and direct action. I explain how these five phases were reflected in the speech events under study and the extent to which their real-world features challenge or support the cancel-culture and consequence-culture narratives. I end by suggesting further research on the implications of this phases framework for efforts to balance universities’ dual commitments to free speech and inclusive community on their campuses.

Download the article from SSRN at the link.

Cameron on Freedom of Expression and the Charter: 1982-2022 @OsgoodeNews

Jamie Cameron, Osgoode Hall Law School, is publishing Freedom of Expression and the Charter: 1982-2022 as an Osgoode Legal Studies Research Paper. Here is the abstract.

In 2022, on the 40th anniversary of the Canadian Charter of Rights and Freedoms, I wrote a 5-part blog series that reviewed the Supreme Court of Canada’s s.2(b) jurisprudence. These blogs were published by the Centre for Free Expression (CFE) at Toronto Metropolitan University (TMU), and can be found on the CFE website (See author page: https://cfe.torontomu.ca/blog?issues=All&authors=117). The five blogs, which are consolidated here, begin with a comment on the Court’s 2021 landmark decisions in City of Toronto v. Ontario and Ward v. Quebec. The second blog shifts, providing a quantitative and qualitative survey of the jurisprudence, and is followed by the third blog’s analysis of Irwin Toy and the contextual approach, s.2(b)’s building blocks. The fourth blog addresses newsgathering, open court, and freedom of the press and media, leaving the fifth in the series to comment on s.2(b)’s future. In doing so, the final blog considers the role of positive obligations in the s.2(b) jurisprudence and sketches a proposal for the renewal of s.2(b)’s concepts of breach and jurisprudence.

Download the article from SSRN at the link.

ICYMI: Schneider on International Media and Conflict Resolution: Making the Connection @mulaw

ICYMI: Andrea Kupfer Schneider, Cardozo School of Law (now Marquette Law), has published International Media and Conflict Resolution: Making the Connection at 93 Marquette Law Review 1 (2009). Here is the abstract.

For conflict resolution scholars, the idea of focusing on the media is a logical one. After all, the media is the primary method through which the public and political leadership perceive and understand conflicts at home and abroad. If we are working to better handle these conflicts, the way that these conflicts are explained and understood is a crucial part of that process. Do the media have a responsibility to report all sides, even if one side is “wrong”? Do the media share in responsibility for escalation of a conflict if the reporting is incendiary? (The conviction of certain media figures involved in the Rwandan genocide and the use of “Tokyo Rose” during World War II are only two stark examples of how media can be directly involved in conflict.) And what of the responsibility of conflict specialists—are those of us in the conflict resolution field ignoring the media at our peril? Many commentators on the media—from journalists to lawyers to conflict resolution scholars—have argued about the proper role of journalists and decried the common “if it bleeds, it leads” approach to reporting. Can journalists play a different role in informing the public, moderating the debate, creating understanding? In answering this question, we wanted to take a broader approach and bring a variety of disciplines and experiences to bear. So, we start this symposium with four different disciplinary looks at the linkage between media and conflict. We then spread across the world, with case studies from five different continents to illuminate the concepts while providing important insight into the actual functions performed by the media. The case studies we include also raise interesting points on the types of media. As media have evolved from newspapers to three primary television stations to cable news to the Internet, we also need to understand how that evolution has impacted the reporting on conflict.

Download the essay from SSRN at the link.

Radsch on Platformization and Media Capture: A Framework for Regulatory Analysis of Media-Related Platform Regulations @courtneyr @UCLAtech

Courtney Radsch, UCLA Institute for Technology, has published Platformization and Media Capture: a Framework for Regulatory Analysis of Media-Related Platform Regulations at 28 UCLA Journal of Law & Technology, Platforms & the Press 175 (2023). Here is the abstract.

This article analyses the challenges of regulating the digital technology sector to support journalism in the era of platformatization. It examines the interdependence between three categories of policy interventions proposed by regulators worldwide to rebalance the dynamics between journalism and online platforms: taxation and subsidies, copyright and licensing, and competition and anti-trust. By examining the theory of change driving each intervention, the benefits to publishers, and the potential for government intervention, this paper explores the risks of capture inherent in different approaches. It analyses the potential for media capture in each regulatory approach and with respect to further tying the future of journalism to the infrastructure provided by tech platforms. Capture through platformatization is not well understood or considered by policymakers, and many debates over regulation rightly focus on the potential for political influence, but they fail to consider the broader implications of specific policy interventions on infrastructure capture. This article argues that policymakers must establish a transparency framework to provide better data and understanding of the relationship between online platforms and news media. Without it, interventions will be ineffective, and dependency ensured. It concludes with a discussion on the importance of defining the objectives of new laws and crafting them in ways that minimize threats to media independence and sustainability. This article provides a theoretical contribution to the broader emerging discourse on platformatization and media capture and offers practical recommendations for policymakers based on comparative analysis and an assessment of evidence and impact.

 

Download the article from SSRN at the link.