Category: Media Law

Washington Post Fire Sale

As newspapers falter, we often hear about how terrible it would be if public funding supported them. Imagine the conflicts of interest! Well, we’re now getting an inside look at the “stealth marketing” media may need to engage in in order to survive:

Mike Allen at [has] reported that Post publisher Katharine Weymouth has decided to solicit payoffs of between $25,000 and $250,000 from Washington lobbyists, in return for one or more private dinners in her home, where lucky diners will receive a chance for “your organization’s CEO” to interact with “Health-care reporting and editorial staff members of The Washington Post” and “key Obama administration and congressional leaders. . . .”

Though the Post’s leadership quickly backed away from the plan, we can only imagine what kinds of fire sales a few more years of economic hardship will bring:

Looks like Dan Froomkin got out just in time!


Barnes v. Yahoo!, CDA Immunity, and Promissory Estoppel

yahooThe Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel.  I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

Barnes contacted Yahoo to get the profiles taken down:

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BRIGHT IDEA: Julia Angwin on Stealing MySpace: The Battle to Control the Most Popular Website in America

stealing my space.JPGAs some of you know, John Scalzi is a good friend of mine. His Big Idea series inspired our Bright Ideas series here at Concurring Opinions (John was gracious enough to let me ping off his series). John’s series usually focuses on science fiction, but a recent post highlighted Julia Angwin‘s new book, Stealing MySpace: The Battle to Control the Most Popular Website in America. As John notes, Julia is the Senior Technoloy Editor of, the Wall Street Journal’s web site.

Julia’s impressive experience makes her well positioned to offer insights about MySpace. She has covered technology for the San Francisco Chronicle in 1996 “including Microsoft’s antitrust woes”; was named “Outstanding Young Journalist of the Year” by the Northern California chapter of the Society of Professional Journalists; and won a Knight-Bagehot fellowship in journalism for studies at Columbia Business School. She obtained an MBA at Columbia in 2000 and then started her career with The Wall Street Journal in New York. As her bio explains she “cover[ed] technology and the dot-com boom from an East Coast perspective. The rise and fall of the AOL Time Warner merger was an important part of [her] beat. In 2003, [she] was on a team of reporters at The Wall Street Journal that was awarded the Pulitzer Prize in Explanatory Reporting for coverage of corporate corruption.”

I liked the post and luckily Julia and John said they did not mind me reposting the entire post. So here’s Julia.


As a nonfiction writer, I don’t get to choose the ‘big idea’ in my work. All the ideas – large and small – arise naturally from the facts I uncover. My job is to take the facts, stare at them hard and extract the ideas from them.

When I began writing Stealing MySpace, I thought that the ‘big idea’ that would emerge would be about the remix generation – the kids who were using MySpace to reshape their digital worlds. After all, weren’t they changing the world with their behavior?

But, in fact, the big idea that arose from my reporting was altogether different. It was this: what does it take to be a successful entrepreneur?

Early in my investigation, I discovered that the founders of MySpace were scammers. Before they started the social-networking site, they sent spam, distributed spyware, and peddled spy cameras you could hide in your shoe and e-books touting “how to grow taller” and “how to hypnotize people.” MySpace was just an idea they copied from a popular Web site at the time, Friendster.

MySpace’s parent company, Intermix, wasn’t much better. It made most of its money selling subscription wrinkle cream and diet pills online, had a spyware business of its own, and had a thriving animated greeting card business best known for its fart and poopy diaper jokes.

In the book, the venture capitalist who backed Intermix (and was initially reluctant to support MySpace) David Carlick says why he’s not worried about the unsavory parts of Intermix. “Marketing has always been on the scary edge of ethical.”

This was a vastly different story than the canonical tech startup tale. This oft-told narrative stars a Bill Gates genius-type founder dropping out of Harvard to work on his technological breakthrough in a garage somewhere.

This was the story that I absorbed into my pores as a kid growing up in Silicon Valley, and then as a reporter covering the industry.

Meeting this new type of success story I wondered: were the MySpace founders just lucky? Or was their hucksterism part of what it takes to succeed?

One solution presented itself to me: Web technology had finally become easy to use. No longer were Web companies going to be run by engineers; now they could be run by marketers, too.

But then, slowly, it dawned on me that the Silicon Valley tale I’d grown up on was a bit of a myth. Hadn’t these tech companies really been run by marketers all along? Bill Gates, although he was a brilliant programmer, was an even more brilliant marketer. Ditto for Steve Jobs, whose marketing prowess is such that he is considered a “reality distortion field.”

And thus I stumbled onto my big idea: The greatest entrepreneurs are hucksters who have simply crossed the line into brilliance.


Stealing MySpace: Amazon | Barnes & Noble | Powell’s

Read an excerpt of Stealing MySpace (pdf link). Visit Julia Angwin’s blog. Follow Julia Angwin on Twitter.


Rethinking Free Speech and Civil Liability

freespeech3.jpgWhen does civil liability for speech trigger First Amendment protections?

Recently, Professor Neil Richards and I posted on SSRN our new article exploring this question: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).

Surprising, the issue of when civil liability for speech triggers First Amendment scrutiny is governed by two totally contradictory rules. Since New York Times v. Sullivan, the First Amendment applies to tort liability for speech, including defamation and invasion of privacy.

But in other contexts, the First Amendment does not apply to liability for speech. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules restrict speech.

In a large range of situations, however, these rules collide. Tort, contract, and property law overlap to a substantial degree, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability.

This conflict is vividly illustrated by the law of confidentiality. We pose the following hypothetical in the article:

Suppose an attorney representing a client in a highly-publicized case discloses the client’s confidential information. The client sues under the breach of confidentiality tort. The attorney claims that she was engaging in free speech and that the First Amendment protects her right of expression. Does the Sullivan or Cohen rule apply? One could argue that the Sullivan rule applies because breach of confidentiality is a tort. On the other hand, breach of confidentiality remedies a contract-like harm. Even if never expressed orally or in writing, an implicit agreement exists between the attorney and client that the attorney will maintain the confidentiality of the client’s information. Perhaps this situation should fall under the Cohen rule because the breach of confidentiality claim more closely resembles an action for promissory estoppel rather than an action for public disclosure of private facts. If this were the case, then the First Amendment would not apply.

In our article, we explore how this problem can be resolved. We survey the way that existing doctrine and theories attempt to address the conflict between the Sullivan and Cohen rules, and we demonstrate why such approaches are lacking. We aim to develop a coherent approach for resolving when the First Amendment applies to civil liability for speech. To find out our solution, take a look at our article and let us know what you think.

“Weapons of Mass Distraction”

I’m beginning to think that Barack Obama might only be able to win the presidency in the midst of an economic crisis. That’s not because of any defects in his candidacy or ideas, but due to a shocking inadequacy of the press. They are actually willing to take at face value any outrageous claim made by a candidate and to run it as a headline story. As Eugene Robinson observes,

[W]e know that it’s not in the public interest to spend the rest of the campaign talking about fringe characters who once crossed paths with Obama, McCain, Palin or Joe Biden instead of debating the economy, the war on terror, health care or any of the other big issues that will define the next presidency.

We all understand that the strategy of the McCain campaign is one of distraction — his campaign aides have acknowledged that they want to shift the focus from the economy to character, which means personal attacks against Obama. Lacking any fresh mud to sling, the McCain people are trying to exhume guilt-by-association charges that were exhaustively examined months ago during the primaries.

There’s an obvious reason for this pattern of reporting on the most shocking claims–sensationalism sells. Yet at some point journalists are professionals, not mere stenographers. What are the limits to what they’re wiling to report?

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Investigation of FCC Ends, For Now


In January 2008, the House Energy and Commerce Committee initiated a formal investigation into the FCC’s “regulatory procedures and practices.” At issue were concerns that agency officials abused how items were brought to a vote, leaked information to certain lobbyists and not to others, and insisted up moving forward with modifications of the ban on newspaper-broadcast cross-ownership depsite attempts to stop or delay agency action by members of FCC oversight committees in both Houses. According to Chairman John Dingell, the investigation would assess if the FCC’s procedures were conducted in a “fair, open, efficient, and transparent manner.” In March, the Committee asked FCC Chairman Kevin Martin for emails, memoranda, notes, phone conversations, meeting schedules and other information on the setting of FCC agendas, any limitations on communications between employees on official agency business, contacts with industry, personnel reassignments, among other things.

The Committee has just announced the end of its investigation. Now, the Committee is “considering how best to make our findings public, including a committee report.” The investigation did not include public hearings. Although the Committee members are no doubt distracted by the current fiscal crisis, one can hope that their report is issued soon.

Wikicommons Image


The Future of Legal Journalism

media6a.jpgWashington Lawyer magazine has an interesting article about the future of legal journalism in this month’s issue. From the article:

Try looking for legal journalism today, and you’ll definitely find it. Many local, regional, and national newspapers are providing distinguished court coverage, exposing injustices, following corruption trials, and covering constitutional cases as they proceed through the appellate system. It is not that those commendable works have disappeared, especially in national newspapers such as The Washington Post and The New York Times, but rather these journalism institutions are not the norm anymore as papers burdened with layoffs and a shrinking news hole have pared their staffs and coverage of everything, not just the legal system.

It is worth noting that even as the mainstream media falters, the legal press is thriving. Designed to serve the needs of lawyers, law firms, law libraries, and academia, publishers and information gateways such as Thomson Reuters’ FindLaw, Reed Elsevier Inc.’s LexisNexis, or American Lawyer Media, Inc.’s provide volumes of legal coverage every day, including more access to tailored information than ever before. It is unclear whether this reflects society’s overall move toward specialization, although it may be a major contributing factor, some say. Respected and well read, these products provide an astonishingly broad array of legal information aimed at the experts in the field.

Still, there are increasingly fewer media outlets providing the public with legal news and information. Instead, general legal news is limited to celebrity arrests, occasional political scandals in Washington or statehouses, and explicit details of nasty homicides. The emphasis is on the crime, not as much on what happens after the criminal has been arrested.

The closest thing to regular coverage is the “legal” news on cable networks, from trial coverage on Court TV (now known as truTV, and the name alone shows where the trend is heading) to cable news shows that blast the sensational “legal” news of the day with the staccato delivery of a machine gun. . . .

For all its Nielsen ratings points, Law & Order hasn’t translated into more mainstream news coverage of the law, according to The State of the News Media 2008 report. The least-covered domestic issues, determined by the percentage of space dedicated to them in mainline newspapers, were education (1.0 percent), transportation (0.8 percent), religion (0.7 percent), court/legal system (0.4 percent), and development or sprawl (0.2 percent).

There’s a lot more in the rather lengthy article.

Defamation by PhotoShop?

At 25, you have the face heredity gave you; at 50, you have the face you deserve; and at Fox News, your features depend on whether you’re a friend or enemy of the network. Or at least that’s how Jacques Steinberg and Edward Reddicliffe must feel after Fox aired doctored photos of them on its news show.


Note that the normal photo was not shown on Fox News; the distorted image was presented as the face of Steinberg. (I’ve embedded the full clip below the fold.)

Can such a distorted depiction give rise to a defamation action? Obviously if the picture were a cartoon, and/or the program a satire or non-news program, creative license lets just about anything go (though some particularly egregious images have sparked resistance). But does a news program have a special obligation to “objectively” present images? And, returning to defamation, is it possible to argue a) that the distorted image is a “lie” about the person it depicts and b) that ugliness (that which distortion seeks to convey) is actionable as something damaging to the person whose image is distorted?

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Wolin and Greenwald on the Media

The recent Scott McLellan book on his time as a wind-up mechanical press secretary has generated a lot of commentary; perhaps the NYT’s sardonic categorization of Washington tell-alls puts it best:

There are several kinds of Washington memoirs: “I Reveal the Honest Truth,” a kiss-up-and-tell designed to settle scores (nod to honesty optional). “I Was There at the Start,” designed to make the author appear to be the linchpin of history. And, most tedious: “I Knew It Was a Terrible Mistake, but I Didn’t Mention It Until I Got a Book Contract.”

Nevertheless, amidst the choreographed effort to discredit the new McLellan as a zombie, it’s useful to step back and think about the press corps we now have. As many have already noted, the McClatchy newspapers managed to report truths about the buildup to war in Iraq long before more popular and established outfits did. Why was this?

Noted political theorist Sheldon Wolin has recently published Democracy Incorporated at Princeton University Press; he suggests the following:

In an earlier time it was common to liken the free circulation of ideas to competition in a free marketplace: the best ideas, like the superior product, would prevail over inferior competitors. In the highly structured marketplace of ideas managed by media conglomerates, however, sellers rule and buyers adapt to what the same media has pronounced to be “mainstream.” Free circulation of ideas has been replaced by their managed circularity. The self-anointed keepers of the First Amendment flame encourage exegesis and reasonable criticism. Critics who do not wish to be considered as “off-the-wall” attract buyers by internalizing co-optation. Accepting the conventions of criticism entails accepting the context created and enforced by the “house” voices. The result is an essentially monochromatic media. In-house commentators identify the problem and its parameters, creating a box that dissenters struggle vainly to elude. The critic who insists on changing the context is dismissed as irrelevant, extremist, “the Left”—or ignored altogether.

But one question that immediately comes to mind in light of Wolin’s critique is whether voters have the background necessary to assimilate the types of commentary he’d like to see. Consider the latest attack on common assumptions about democracy from George Mason, by Rick Shenkman:

[I]n Just How Stupid Are We? [Mason Prof.] Shenkman cuts through the Gordian knot of contemporary politics with a shatteringly simple claim: the problem lies not in the machinations of elite business leaders and policy-makers, but in the gross ignorance and irrationality of millions of ordinary voters. . . . Only 2 out of 5 voters can name the three branches of the federal government. Only 1 in 7 can find Iraq on a map. . . A Washington Post poll in September 2003 found that 70% of Americans believed Saddam Hussein was responsible for 9/11. A majority continued to believe this even after the 9/11 Commission reported that the claim was groundless.

Though I’ve found much to commend in Bryan Caplan‘s and Ilya Somin’s worries about voter competence, I ultimately feel the George Mason revival of Walter Lippmann’s classic complaints about democracy goes too far. There simply is too much self-serving media refusal to acknowledge basic facts–whether irrefutable facets of science or history, or the types of biases that drive media coverage.

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PainStation: A Clockwork Lemon?

boccioni.jpgI’ve previously covered technological and legal responses to the ever-increasing cell phone din. Now some inventive designers are imagining new scenarios for noise control. For example, Social Mobile 5 (SoMo5) “launches sound bombs into other people’s annoying conversations.” Authorities may outfit repeat offenders with SoMo1, which “delivers an electric shock whose intensity varies depending on how loudly the person at the other end of the line is speaking.” (Be sure to check out the online video. I wonder if they’ll submit it to future rulemakings on the issue?)

When I saw these darkly fanciful ideas on display at the Museum of Modern Art’s show Design and the Elastic Mind, I immediately connected them to another part of the exhibit: the PainStation, which would raise the stakes of videogaming by making players’ left hands suffer “heat, electric shocks, or a quick whipping” after mistakes.

These ideas reminded me of a great Dan Burk article title: A Clockwork Lemon. I doubt they’ll be built, but they subversively suggest the way individuals may move from reluctantly submitting to technologies of control to expecting them. As Julian Dibbell noted in his book on Chinese “gold farmers” (individuals who perform repetitive tasks in online games in order to sell game points to wealthier purchasers), some of the gold farmers would relax after 84-hour weeks of game playing by . . . playing more games.

I suppose on some libertarian angle we should celebrate this merger of freedom and necessity in the future. The glittering, perfectly designed interfaces at MOMA suggest as much. But the occasional project highlighted the darker side of technologies of control, and the “future farms” that the spontaneous order of the market will inspire. I’ll describe those more in a bit.

Photo Credit: wallyg, photo of Umberto Boccioni’s Unique Forms of Continuity in Space.