Libel Lawyers as Risk Counselors: Pre-publication and Pre-broadcast Review and the Social Construction of News1

American libel law presents profound dilemmas about how to provide compensation to individuals for injury to their reputation without destroying First Amendment values of free expression and unfettered public debate. This paper looks at the substantial legal costs incurred by publishers and broadcasters in defending themselves against charges of libel, the response of the courts to limit press self-censorship occasioned by the risks of libel litigation, and the perverse effect they both have on the social construction of the news. These tensions are captured in the role of the media lawyer who reviews news stories prior to publication or broadcast and advises editors about libel risks. Data are presented from interviews of 53 in-house and outside counsel who regularly review stories for newspapers, television stations and networks, magazines, and other news organizations. A paradox emerges: media lawyers, in pursuit of constitutional protections of free speech, have come to enforce responsible journalism, while subtly chilling and shaping the ways the news is told.     

Anonymous Speakers and Confidential Sources: Using Shield Laws When They Overlap Online

The development of the Internet as a mass medium has created new tensions between the rights to speak anonymously and to be protected against defamation. Some courts have developed balancing tests to determine when anonymous speakers should be unmasked, the most popular of which generally require some initial showing of prima facie evidence. Other times, shield laws have been used to protect the anonymous when comments have been posted on news organization Web sites. However, news organizations should be cautious when using shield laws to protect anonymity, and judges should evaluate privilege claims as they always have. In other instances, anonymity appears to be adequately protected by summary judgment balancing tests. An approach in which news organizations focus on the type of comment and its potential journalistic contribution in deciding how to protect commenters’ identities could help ensure that anonymous speech is properly protected without harming shield laws.     

Clashing conceptions of press duties: Public journalists and the courts

This article bridges the growing, but controversial, public journalism movement with First Amendment jurisprudence and libel law. It examines whether the movement finds support in laws that affect the press and, in particular, in court‐created defenses and privileges that protect journalists in modern defamation law. Do defenses that safeguard journalists in their traditional routines as fact gatherers and reporters also protect them in the kinds of roles and duties envisioned by public journalism advocates? Furthermore, has the United States Supreme Court, in non‐defamation cases involving the First Amendment, expressed concern for protecting what might be called the “public journalism functions” of the press? Does the Court create a different image for the press than the one envisioned by public journalism advocates? This article addresses these questions. It ultimately concludes that public journalists and courts have two very different conceptions about the role that journalists play in a democracy.     

It Is Important to Understand Our Strengths and Weaknesses

[From the editors of Zhurnalist:] The magical metamorphoses of our journalism could happen only in fairy tales. First, it transformed itself from a handmaiden of the Party into a "fourth estate," literally overnight, then reduced itself to a conveyer belt. Clearly there has been much change in us. So what are these changes, what caused them, and what might their consequences be for us and for society?     

The place of law in a business studies curriculum

Abstract

LEGAL ETHICS are the values that inform the practice of law. This article establishes what and how Australian law schools teach about legal ethics and suggests what and how Australian law schools should teach about legal ethics.

First, the article establishes that Australian law schools tend to teach legal ethics as if it were only concerned with the law of lawyering. It also establishes that Australian law schools tend to teach legal ethics discretely over the course of one subject out of the whole undergraduate curriculum.

Secondly, this article suggests the adoption of a new approach to legal ethics as the ability to exercise legal ethical judgment. It also suggests a pervasive method of instruction that integrates issues of legal ethics and the process of legal ethical judgment into every subject in the undergraduate curriculum in combination with discrete subjects on the context and substance of the law of lawyering.     

Police Accountability and the Media

This article explores First Amendment theory and the role of the media in generating police accountability through public understanding of police organizations. We argue that free speech theory can and should look beyond "abridgment" issues and raise questions about the civic responsibility of the press to inform the public about key governmental institutions. The media's concern with crime news, we found, vastly overshadows its coverage of the police us a complex, in-teresting, and expensive governmental agency. Reporting about police institutional patterns and policies contributes more toward fulfilling First Amendment values-not only that of "checking" police excesses, but of facilitating the goal of enlightened citizen participation in local government.
Those who won our independence believed…that public discussion is a political duty; and that this should be a fundamental principle of American government. They recognized the risks to which all human institutions are subject.     

言论自由、出版自由、新闻自由的主体及其法律保护

言论自由的主体是自然人 ,出版自由的主体是自然人和法人 ,新闻自由的主体是法人。法律应当对言论区别不同类型给以相应的保护 ;对出版自由 ,法律既要保护 ,又要限制 ,但二者的界限尚有待明确 ;法律对新闻自由在保护的同时 ,要注意它与公民个人权利、与国家权力、与公众人物的利益发生冲突时应采取不同的调整手段。     

Logic,licensing and public relations

This article focuses on the need to move past First Amendment concerns to foster a meaningful debate about the licensing of public relations practitioners. Whether, and to what extent, public relations should be licensed is not the subject of this discussion. Instead, this article uses Aristotelian logic to dispute the spurious conclusion that any licensing scheme for public relations work and / or the individuals who perform it is unconstitutional on its face. Relying on First Amendment jurisprudence, the article demonstrates that some restraints on speech in the form of licensing are allowed, that not all public relations work involves protected speech or press, that there is a similarity to the constitutionally permitted licensing of certain speech‐related professions and that a hypothetical case can be constructed regarding those who could qualify as licensed public relations counsel. The article concludes that the First Amendment does not necessarily prevent licensing certain public relations practitioners.     

New Privacy Concerns: ISPs,Crime Prevention and Consumers' Rights

In November 1998, Cyber-Rights & Cyber-Liberties (UK) authored a 'privacy letter' to be sent from a subscriber to an Internet Service Provider (ISP) addressing concerns over privacy of communications through a UK ISP. The letter was drafted from the consumers' perspective and raises important issues in relation to ISP privacy policies. The 'privacy letter' was partly developed as a response to the Association of Chief Police Officers (ACPO), the ISPs and the Government Forum's initiatives in relation to developing 'good practice guidelines' between Law Enforcement Agencies and the Internet Service Providers' Industry. These guidelines describe what information can lawfully and reasonably be provided to Law Enforcement Agencies, under what circumstances such information can be provided, and the procedures to be followed in such cases. The process initiated by the ACPO Forum has so far excluded the views of concerned citizens and civil liberties organizations. This article will provide an insight into the activities of the ACPO/ISPs/Government Forum and will argue that procedures can only be properly designed within a legal context that takes due account of individual rights and liberties.     

Profiling,Information Collection and the Value of Rights Argument

In the United States and elsewhere, there is substantial controversy regarding the use of race and ethnicity by police in determining whom to stop, question, and investigate in relation to crime and security issues. In the ethics literature, the debate about profiling largely focuses on the nature of profiling and when (if ever) profiling is morally justifiable. This essay addresses the related, but distinct, issue of whether states have a duty to collect information about the race and ethnicity of persons stopped by police. I argue that states in the U.S. do have such a duty on the grounds that such information collection would help secure the value of persons' human rights against discrimination and unfair policing. Nonetheless, a large number of states do not require it. I begin by distinguishing rights from the value of rights, and arguing that under certain conditions persons have claims to the value of rights themselves, and that states have duties to secure that value. I then turn to the issue of profiling and offer the value of rights argument in favor of information collection about the race and ethnicity of persons stopped by police.     

Rethinking organizational crime and organizational criminology

Organizational crime and organizational criminology, obviously, are, orshould be about ``organization'. This essay wants to explore what is goingon in contemporary ``organizations'; it wants to think through what iscurrently happening in today's organizations. It will argue thatcontemporary organizational life has arrived in a phase of transition.New forms, and new modalities of organizational morality are taking shape.So is organizational regulation. This, as will hopefully become clear, is ofimportance to organizational criminologists who, inevitably, though oftenimplicitly, have been researching and writing about organizational orbusiness ethics and morality for some time now. This essay suggests analternative way of conceptualizing life and regulation in contemporaryorganizations. It suggests a reading of contemporary organizations as clustersof labyrinthine networks – i.e. the raw materials and again the outcome oflabyrinthine moralities – in which – as Deleuze and Guattari had it – theOutside is always already potentially, though undecidably,Within. To students of organizational regulation, and organizationalcriminologists are amongst them, this essay argues that contemporaryorganizations are gradually turning into highly complex networks (of networks) thatare often inextricably interwoven with surrounding networks. This has aprofound impact on how organizational moralities emerge and develop, onon how these in turn impact on the contents and the orientation oforganizational action. This essay will argue that regulating contemporaryorganizatons is bound to be simultaneously much easier as well as muchmore complex than in a previous, ``bureaucratic' age.     

Behind a veil of secrecy: animal abuse,factory farms,and Ag-Gag legislation

Abstract

For years, animal rights organizations have sought to expose animal cruelty on America’s factory farms. With the meat and dairy industry inaccessible to the public, animal advocates rely on undercover investigators who gain access to farms by becoming employees. Working from the inside, these investigators become whistleblowers when they reveal animal cruelty unrelated to the already inhumane conditions of animal husbandry. An effective strategy that has exposed animal abuse as well as conditions threatening to public health, in recent years the agriculture industry has pressured legislatures to enact laws that criminalize photography at factory farms. Dubbed ‘Ag-Gag’ laws by critics, the emergence of legislation targeting animal rights advocates raises important questions relevant to animal welfare, animal rights activism, and freedom of speech. This paper exposes the failure of government institutions to protect animals on factory farms while simultaneously silencing what is currently the only available mechanism for Americans to learn about abuse on factory farms. It also explores the Constitutional implications of Ag-Gag laws. Not only are Ag-Gag laws presumptively unconstitutional, but with their enactment – animal welfare remains unchanged, the American consumer remains uninformed, and America’s factory farms are free to abuse animals behind a legal veil of secrecy.     

'My tongue is mine ain': Copyright, the Spoken Word and Privacy

This article shows how under the present legislation in the United Kingdom copyright may exist in speech, in particular in interviews and conversations, provided that the words are recorded and constitute an original work. The argument is illustrated and supported by reference to reported cases from throughout the common law world, as well as to news stories and interviews with individuals ranging from Lord Denning to Michael Jackson. Issues arising from the collection of oral history are also discussed. It is further argued that, in addition to the internal analysis of copyright itself, such protection for the spoken word can be justified by the privacy and personality interests of speakers in the use of what they say.     

Smart meters and the information panopticon: beyond the rhetoric of compliance

The Smart Meter Implementation Programme is the Government's flagship energy policy. In its search for solutions to address privacy dilemmas raised by smart meters, the Government has been content with using data protection principles as a policy framework to regulate the processing of consumers' personal information. This is worrying since the question of who has access to what type of information and how it is used cannot simply be regarded as raising information security, authenticity and integrity issues. If we are to go beyond the rhetoric of protecting the privacy rights of energy consumers we must scrutinise the context in which legitimate interests and reasonable expectations of privacy subsist. To remedy this apparent policy oversight, the paper undertakes two tasks: first, to clarify the content and application of data protection and privacy rights to smart meters; and second, it outlines a policy framework that will address the lack of specificity on how best innovation and privacy issues can be better calibrated. More importantly, it calls for targeted substantive reforms, development of accessible privacy policies and information management practices that promote transparency and accountability and deployment of technological solutions that will help reduce emerging fault lines between innovation and privacy in this sphere of energy policymaking.     

The Angry Pamphleteer: True Threats,Political Speech,and Applying Watts v. United States in the Age of Twitter

Since the 1969 case Watts v. United States, courts have consistently held that politically motivated speech about or directed to public figures may be punished if it qualifies as a “true threat” rather than protected political hyperbole. Criticism of public officials lies at the core of First Amendment protection, even when that criticism is caustic or crude. Such caustic speech appears on Twitter with increasing frequency, often pushing the boundaries of the constitutional guarantees of free speech. Through an analysis of the political speech-true threat cases that apply Watts, this study identifies and assesses three distinct modes of analysis that lower courts use to distinguish political speech from true threats. They are: (1) criteria-based analysis; (2) ad hoc balancing; and (3) a form of balancing referred to herein as “line-crossing analysis.” This study concludes that criteria-based analysis is the most prominent mode used by lower courts. As applied to new media and political participation, criteria-based analysis risks unduly restricting valuable political speech.     

The right of publicity in the digital age – Doctrinal tensions, common law theories and proposals for solutions

In the fall of 2007, a federal appeals court ruled that the use of the names and records of Major League Baseball players without license or permission by an Internet fantasy sports website was protected speech and trumped the property rights of the players. The ruling by the U.S. federal appeals court in CBC v. MLBAM marks the latest skirmish in the long-simmering tension between the scope of the “Right of Publicity,” a common-law based doctrine that has expanded over the last half-century and the First Amendment's guarantee of free speech. This issue of where free speech ends and proprietary protection begins is the subject of a long line of cases – with conflicting rulings, different doctrines and a haphazard state-by-state approach. With the evolution of the Internet as a marketing and commerce tool, the economic implications of digital rights have increased the problem. This article tracks the development of the right of publicity tort, discusses the leading cases and proposes solutions.     

Feminist lawyering,violence against women,and the politics of law reform in India: An interview with Flavia Agnes

The history of the women’s movement’s relationship to law in India cannot be written without acknowledging the pioneering work of activist, advocate, and scholar Flavia Agnes. Her own life’s journey, engagement with the movement, involvement in women’s rights litigation, feminist jurisprudential scholarship, and outreach work through Majlis (the organisation she co-founded) offer key insights into the kind of movement-based legal pedagogy, awareness, and training that the women’s movement has fostered in India. Flavia’s activism and scholarship over the last three decades have opened up sophisticated critiques of rape law and family law reform in India that have become foundational to the field of what can be called Indian feminist jurisprudence. This interview offers insights into the autobiographical, the feminist, and the scholarly convergences in Flavia’s thinking and writing. She speaks with candour and conviction and introduces ways of thinking about feminist lawyering, violence against women, and the politics of law reform in India that are historically and theoretically grounded in an ethics of self-reflexivity and quotidian wisdom that the insulated nature of clinical legal education in India has much to learn from.

     

Gag orders: Shields or swords in the constitutional conflict between fair trial and free press?

In 1976, in Nebraska Press Association v. Stuart, the Supreme Court characterized gag orders as the “most serious and least tolerable infringement on First Amendment rights.”; Yet courts impose gag orders that restrict media coverage of courts and trial participants. Many groups believe the use of gag orders is increasing. However, no previous study has attempted to quantify the frequency of gag orders or to explore judicial attitudes about the issuance of such orders. This analysis of the case law and exploratory survey of judges in Florida suggests that courts issue gag orders to protect fair trials, participant safety and privacy, and the sanctity of the courtroom.

This article also suggests that conflict over gag orders arises because judges disagree about the core meanings of the First and Sixth Amendments. This research indicates that judges' individual interpretations of the Constitution color their determinations of whether indirect gags on trial participants, rather than on the media, are impermissible assaults on the First Amendment or are permissible shields of fair trials. Judges tend to be either First Amendment apostles or Sixth Amendment followers, and Sixth Amendment judges are more likely to impose and uphold gag orders. The authors suggest that this schism is unlikely to be resolved without guidance from the Supreme Court.     

How Race,Sex, and Age Frame the Use of Authority by Local Government Officials

Thanks to the civil rights movement, women and racial and ethnic minorities increasingly hold positions of public authority—but they experience and exercise this authority differently from white men. Based on 162 narratives collected from 49 US local government officials (city administrators and police), I find that women, minorities, and younger officials in positions of authority face a paradox of rules. Because they have lower social status with the public and within their organizations, they must rely on formal and explicit rules as a key basis for their authority, but such reliance causes their very authority to be questioned. Social status based on implicit assumptions about social identities, including race or ethnicity, sex, and age, originates outside of organizations and has effects society wide. This study shows that social status continues to permeate US local government organizations in both subtle and explicit ways, even in bureaucratic settings that are formally committed to merit and professional norms.     

The Right and the Duty: Jefferson,Sedition and the Birth of the First Amendment's Central Meaning

When the right and duty to criticize government and its officials is under attack in the United States, the democracy is threatened. The idea of holding those in power accountable, and its origin, assume particular importance. While this “central meaning” of the First Amendment culminated with Justice William Brennan's New York Times Co. v. Sullivan opinion in 1964, the process of discovering that meaning actually began more than a century and a half before. Near the end of the eighteenth century, a political battle ensued over the meaning of the First Amendment. The Alien and Sedition Acts of 1798 were signed into law by a chief executive who sought to control political criticism of him and the government over which he presided. This article focuses on the role of Thomas Jefferson in the resistance to these laws. This battle, according to Justice Brennan, “[F]irst crystalized a national awareness of the central meaning of the First Amendment.” This article posits that this conflict resulted in birth of the modern First Amendment – the discovery of its central meaning – and is premised on the notion that revisiting the events described herein is especially relevant within a period in which officials in high office threaten speech and press rights.