Category: Media Law

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Investigation of FCC Ends, For Now

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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

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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 Law.com 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.

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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.

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The Future of Sensory Jurisprudence

eye.jpg[This post continues the debate about Whose Eyes are You Going To Believe, the draft paper Dan Kahan, Don Braman and I have recently begun to circulate. For previous installments, see posts on Balkin, CoOp, Volokh (Kerr), and CoOp (our reply).]

As I hope we’ve made clear, our ultimate claim is not (cf. Kerr) that “Justice Scalia was privileging a conservative white male view” of Scott, but that judges need to be generally mindful of the possibility that their views of facts, and factual dissensus, are as culturally contingent as the public more generally. Thus, we argue for rhetorical humbleness, and for deciding cases on grounds other than a holding that no reasonable juror could see the facts in a certain way. It’s a modest response to the large problem of cognitive illiberalism in legal decision making.

In this post, I’m going to make a bigger claim, one which isn’t so much based on the paper or my co-authors’ views, but is instead just the kind of irresponsible extension of the data that blogging encourages. In short: it’s my view that Scott is a harbinger of a whole mess of cases on the near horizon: a sensory jurisprudence enabled by a total surveillance society.

Total surveillance as a concept is one well-explored by other authors on this blog. But even in Dan Solove’s well-known post – and subsequent highly downloaded article – about the “I’ve nothing to hide” problem, the doctrinal consequences of total surveillance were virtually ignored. And by doctrinal, I do not mean the privacy law consequences: I mean the likelihood that as surveillance becomes omnipresent in most public and some private places, judges will use surveillance evidence [“SE”] in an increasing number of cases to resolve factual disputes.

This use of SE would seem to promise more accurate, efficient, and ex-post legitimate litigation outcomes. The theory would go that most litigation is driven by a dispute about the facts: SE should dispositively resolve such disputes, promoting settlement and (at worst) streamlining trials. Best of all, opinions enlisting SE would be more likely to be persuasive. Thus, if Judge Cardozo, ruling on the relative fault of the parties in, say Palsgraf, could have just embedded a video of the events instead of describing it in his beautiful but inscrutable prose, perhaps readers/viewers would have more likely to agree with him. Or in a sexual harassment case, if the workplace was totally taped, evidence of a hostile work environment would be both clearer and harder to refute. And in the case of coerced interrogations, a judge could simply embed a video, instead of describing it, and say: “look, it’s obvious!”

The connection between SE and surveillance is (ironically) made stark in a video … but to see it, you’ll need to read past the jump.

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Seinfeld, Language, and Law

Years ago law prof Jedediah Purdy warned us of Seinfeld’s charms. Here’s a reviewer’s account:

The ironic man, whom Mr. Purdy personifies as the sitcom character Jerry Seinfeld . . . is an outright menace. With his ”style of speech and behavior that avoids all appearance of naivete — of naive devotion, belief, or hope,” the individual armored in the irony . . . has withdrawn from the political arena just when it needs him most.

But he’s certainly outfront with lawsuit PR. Now courts may have to wrestle with the polysemic potential of his irony (and humor generally).

Seinfeld was on Letterman last year, and his comments on the woman now suing his wife for plagiarism were not exactly conciliatory. Now he’s being sued for defamation. Here’s the video, which gets interesting 40 seconds in:

Jonathan Turley gives excellent background and analysis; he has the following comment

Seinfeld called Lapine . . . “hysterical.” He said: “Now you know, having a career in show business, one of the fun facts of celebrity life is wackos will wait in the woodwork to pop out at certain moments of your life to inject a little adrenaline into your life experience.” He further noted that Lapine could be dangerous, joking “if you read history, many of the three-name people do become assassins . . . Mark David Chapman. And you know, James Earl Ray. So that’s my concern.”

The Seinfelds are clearly going to defend on the basis that his statements were opinion and not factual representations covered by defamation rules.

A few thoughts below the fold. . .

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If It Bleeds, It Leads

In an interesting twist on the old adage of broadcast journalism, “if it bleeds, it leads,” CNN.com has quietly modified the news categories on its home page, to replace “Law” with “Crime”. When you follow the “Crime” link, you find somewhat greater diversity of coverage, now under the heading of “Crime and Justice”.

Perhaps tellingly, though, consider the two teaser headlines on the home page, as I’m typing this post:

“Blood near Marine’s likely grave, sheriff reports”

“O.J. Simpson headed to Las Vegas jail cell”

“Crime” is clearly a lot easier a sell than “Law”. What might that forebode, though, for the general public’s notions of law? What long-term consequences can we expect of a consumer-driven orientation of the mass media to covering “crime” versus “law”? Perhaps few. Perhaps CNN.com is simply a place to go for entertainment and titillation anyway. In that case, it doesn’t much matter whether the coverage is of blood spatter or of the Supreme Court. But if this is supposed to be “the news” – somehow, the idea of “All the News That’s Fit to Print” comes to mind – I have to wonder.

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Law Talk: George R. R. Martin

gm-lochness-t.jpgIn today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the “Law and Hard Fantasy” Interview Series, see:

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Introducing: The Law & “Hard Fantasy” Interview Series

Matteson-witch.jpgEarlier this summer, I wrote a post titled Fantasy’s Apocalyptic Turn, about the development of the “hard fantasy” movement in modern fiction. As I commented:

[I]t is worth briefly thinking about the relationship between epic fantasy and law. Although the legal aspects of fantasy role playing games are now well-marked out, there has been little work (outside of the Potterverse) on how fantasy authors imagine legal rules’ role in society. If epic fantasy is read largely by adolescent boys, this missing attention makes a great deal of sense. You don’t see law review articles about Maxim. But, if fantasy, or hard fantasy, has become a literature for the rest of the population, it is worth thinking about the complete and total absence of civil law in these books, and the light touch of criminal law more generally. Is it impossible to imagine lawsuits and magic coexisting in the same society?

This post got some folks blogging – in agreement and dissent.

I’m still interested in the relationship between epic fantastic fiction and law, and I realized that if I really wanted to know about how law makes it way (or doesn’t) into fantasy novels, I might as well ask some actual authors about it. So, I got in touch with a few writers who I consider to be among the best practitioners of “realistic” epic fantasy, and I’ve put questions to them. Now in doing so, I realize that I’m in danger of over-intellectualizing books that require a certain amount of suspended belief to be digested. Worse, really digging into these stories calls to mind E.B. White’s quote about frogs and humor. Indeed, as the picture to the right illustrates, law’s relationship to magic has the potential to be pretty gruesome.

But it’s worth a try. Over the next several months, I’ll be bringing you several author responses. Some terrific folks are already on board, including the reigning king of the movement, George R. R. Martin, and I’m hoping for more responses to trickle in. But our first guest is a newcomer to the genre, Pat Rothfuss, author of the new, acclaimed, novel The Name of the Wind. I’ll be posting my interview with Pat (hopefully) later on in the weekend.

(Image Source: Examination of a Witch, Thompkins H. Matteson, Wikicommons)