Wikipedians . . . are obsessed with popular culture and less equipped to document the high-brow. The 711-word entry on nouvelle vague filmmaker Claude Chabrol, for example, is much less impressive than the 1867-word article on Transformers-director Michael Bay. . . . [T]he real tragedy of the Wikipedia method is that it reduces intellectual contributions to such granular units that writing a 2000-word entry on Chabrol in one sitting feels like painting the ceiling of the Sistine Chapel. And if you do go to such lengths to improve the site, you do not [...]]]> A recent article in the Boston Review by Evgeny Morozov laments the influence of Wikipedia. I found this passage a particularly interesting take on the epistemology (and ecology) of the web:

Wikipedians . . . are obsessed with popular culture and less equipped to document the high-brow. The 711-word entry on nouvelle vague filmmaker Claude Chabrol, for example, is much less impressive than the 1867-word article on Transformers-director Michael Bay. . . . [T]he real tragedy of the Wikipedia method is that it reduces intellectual contributions to such granular units that writing a 2000-word entry on Chabrol in one sitting feels like painting the ceiling of the Sistine Chapel. And if you do go to such lengths to improve the site, you do not want the bureaucrats—who may know nothing about Chabrol—to judge your contribution. There is something unappealing about the value system of a project that prizes, say, movie reviews quoted from college newspapers over elaborate entries in the authoritative Schirmer Encyclopedia of Film, simply because the latter does not have an easy-to-link Web site.

The Google fetish, it should be noted, is not ideological, but practical. Since Wikipedia’s editors are bombarded with editing tasks—one study estimates three new edits every second—they cannot investigate every entry thoroughly. They are constrained by what can be discovered readily—by Google. But most human knowledge, probably, still lies outside of Google’s reach.

The passage reminds me of an exchange between Sergey Brin and Ken Auletta recalled by the latter on the Leonard Lopate show. Brin asked Auletta why he didn’t just self-publish his book on the web, doing an end-run around publishers. “Who would pay my advance?,” Auletta asked. “How could I support myself for the 18 months it takes to write the book?”

While Brin saw the world of publishing as too-confining, Auletta was in effect opting out of another form of discipline—information location tools that highlight the most accessible content. One key question now is whether the free-cology of Google, Wikipedia, and unpaywalled sources will become its own world of knowledge, creating its own reality unmoored to traditional journalism or books. Auletta might worry that such a dynamic could unleash a Gresham’s Law scenario for knowledge, where the cheapest-to-produce drives out quality content like his. But hard-pressed netizens may well respond: “How am I going to pay for books like yours? How can I support myself when I need to pay $27.95 for every book I want to read?”

X-Posted: Madisonian.

The Yale Law Journal Online is pleased to announce the publication of Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech by Elizabeth Pollman, a Stanford Law Fellow and former practitioner at Latham & Watkins LLP.  Pollman’s piece covers the potential for sweeping changes to corporate political speech law in light of the Supreme Court proceedings in Citizens United v. Federal Election Commission.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than [...]]]> The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.

First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.

With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.

Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”

More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?

And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to [...]]]> As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.

As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.

From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)

There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.

Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.

Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.

Mike Allen at Politico.com [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 [...]]]> 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 Politico.com [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!

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 [...]]]> The 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:

In accordance with Yahoo policy, Barnes mailed Yahoo a copy of her photo ID and a signed statement denying her involvement with the profiles and requesting their removal. One month later, Yahoo had not responded but the undesired advances from unknown men continued; Barnes again asked Yahoo by mail to remove the profiles. Nothing happened. The following month, Barnes sent Yahoo two more mailings. During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo broke its silence; its Director of Communications, a Ms. Osako, called Barnes and asked her to fax directly the previous statements she had mailed. Ms. Osako told Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” Barnes claims to have relied on this statement and took no further action regarding the profiles and the trouble they had caused. Approximately two months passed without word from Yahoo, at which point Barnes filed this lawsuit against Yahoo in Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo’s website, apparently never to return.

The court held, as expected, that Section 230 immunizes Yahoo from Barnes’s claim that it was negligent in removing the content.   This is in line with many courts that have interpreted the scope of Section 230 immunity.

The interesting part of the court’s holding involves Barnes’s promissory estoppel claim.  For non-lawyers, promissory estoppel is a doctrine that provides that when one makes a promise to another person, and that person relies on that promise, then the promise will be treated akin to a contract.  Ordinarily a contract requires bargaining and consideration, which are often lacking with mere promises.

Barnes contended that she relied on Yahoo’s promise to take down the tortious profiles and did not pursue other avenues of relief because of her belief that Yahoo would fulfill its promise.  The court held that Section 230 didn’t immunize Yahoo against the promissory estoppel claim as it had against Barnes’s tort claims:

Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline.

I agree with this conclusion.  Promissory estoppel and contract claims differ from tort claims such as negligence, defamation, or invasion of privacy.  Indeed, such claims are treated very differently under the First Amendment, with tort claims receiving full scrutiny and contract/promissory estoppel claims receiving virtually no scrutiny.  In a recent paper, Neil Richards and I discuss why First Amendment law takes such wildly divergent approaches: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).  We also argue that the line shouldn’t be drawn based on the formalist distinction between tort and contract, as this distinction readily breaks down.  For example, we conclude that the tort of breach of confidentiality should be treated akin to contract/promissory estoppel claims rather than tort claims such as defamation and public disclosure of private facts.

Back to the case.  One of the potential problems with the court’s holding is that it may deter ISPs and other sites from having an explicit policy for removing tortious material.  Yahoo could be penalized with potential liability and a loss of its immunity by having a removal policy.  An ISP or site that has no such removal policy and that would say “get lost” to people who request takedowns would not be subject to promissory estoppel liability.  Is it fair to penalize those who have such policies?

The court notes how its holding is limited:

[A] general monitoring policy, or even an attempt to help a particular person, on the part of an interactive computer service such as Yahoo does not suffice for contract liability. This makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.

In other words, Yahoo is liable not because it had a general removal policy, but because it made specific promises to Barnes.

Eric Goldman argues that policies can readily be redrafted.  He notes that “websites can easily manage their potential exposure to this claim by picking their words carefully.”

I hope that the Ninth Circuit’s holding doesn’t result in various sites qualifying all their promises and weakening their policies in the hopes of avoiding liability.  One of the problems with situations faced by Barnes and others is that the websites and ISPs that have the offensive information posted about victims are often not in any customer relationship with the victims.   Barnes did not contact Yahoo for a regular customer complaint with its service — she was hurt by a Yahoo customer.  The removal policies at many sites and ISPs help people who are often non-customers.  There is no particularly strong incentive for such sites and ISPs to respond to such complaints as with customers who could threaten to leave.

The court’s holding, though correct, might encourage ISPs and sites to further attempt to hide under Section 230’s umbrella by weakening promises to take down harmful content.  And that’s a problem because the original goal of Section 230 was to encourage sites to monitor and take down offensive and hurtful content.  Now the law seems to be saying loudly: You have no responsibility to protect people from harmful content about them.  If you do nothing, then you’re not liable because of Section 230 immunity.  If you promise to protect people, then you might be liable.

This reminds me of Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y. Sup. 1995), where the court held that an ISP could be liable for content provided by another because it had a policy of monitoring content.  This was the very case that Congress wanted to overrule when it passed the CDA 230.

Ironically, the law of Section 230 immunity seems to have moved closer to Stratton Oakmont with the Ninth Circuit’s holding (of course, very significant differences still remain).  This isn’t the fault of the Ninth Circuit’s holding, which strikes me as quite valid.  Rather, it is due to the perverse implications of the overreaching interpretations of CDA immunity that most courts have now adopted, making such immunity near absolute for tort claims.

For further discussion of some of the other issues in the case, see Paul Levi’s post at Consumer Law & Protection Blog and Eric Goldman’s post at Technology & Marketing Law Blog.

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 [...]]]> As 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 WSJ.com, 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.

JULIA ANGWIN:

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.

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 [...]]]> When 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.

[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 [...]]]> 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?

For example, here’s part of a column from Bobby May, the McCain campaign chair in Buchanan County, Virginia, which describes “the platform of Barack Hussein Obama” as follows:

The White House: Hire rapper Ludacris to “paint it black.”

Illegal Immigration: “Learn to Speak Spanish”;

Reparations to Black Community: Opposes before Election Day and supports after Election Day;

Homosexual Marriage: Coddle sexual perverts. Give tax breaks for NAMBLA membership;

Drug Crisis: Raise taxes for free drugs for Obama’s inner-city political base;

One might dismiss this as the work of an extremist. But after one particularly inflammatory speech by Palin alleging that Obama had terrorist ties, a man shouted “kill him!,” referring to Obama. Politics of personal destruction are designed “merely” to assure that one’s opponents are crippled politically when they come into office–so that many will say of Obama “he’s not my president,” just as they dismissed Clinton. But as Israel learned, extreme rhetoric can have tragic consequences. Even if the campaign press doesn’t care at all about informing the public about the issues, it should at least consider the extraordinary dangers it creates when it presents hate and fear “objectively” as worthy of public attention.

As Benjamin Friedman has shown, when economic meltdowns occur, the search for scapegoats is rapid and ugly. This is the time we need to pull together. Only a campaign on the issues puts “Country First.”

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 [...]]]>

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

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 [...]]]> Washington 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.

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 [...]]]> 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?

a) As for the idea of “lie” here, consider these arguments about the infamous “darkened OJ Simpson” image on the cover of Time Magazine:

The image on Time was digitally manipulated, making OJ darker and heavily shadowed (in juxtaposition to Newsweek['s image]). . . . Although Time claimed it was a “photo illustration” that served to “show the tragic downfall of an American football hero,” other folks disagreed. Time was charged with: (1) perpetuating the stereotype of “violent” black men; (2) suggesting OJ was guilty; (3) applying digital manipulations to a “news” photo–apparently a real no-no in journalism . . . [But Cara A.] Finnegan . . . challenges those who think the image serves as a “visual argument,” which she defines as a “set of premises, identifiable in the image, leading to a conclusion which is itself present in the image” (236).

Compare the idea that “OJ is guilty” to “Steinberg is ugly.” What does the puff-chinned, big-eared, grotesque-nosed Steinberg image “argue” here? Glenn Greenwald might assimilate it to what he calls “the dominant media theme for the last two decades in our political discourse:”

What matters is that Democrats and liberals are weak, effete, elitist, nerdy, military-hating, gender-confused losers . . .and who merit sneering mockery and derision. Republican right-wing male leaders are salt-of-the-earth, wholesome, likable tough guys — courageous warriors and normal family men who merit personal admiration and affection. . . . [In our] press corps, fantasy easily trumps reality. And our media stars thus . . . cackle in derision at the Democratic weaklings and losers.

Greenwald’s analysis, backed up at length in his latest book, articulates a possible “message” in the Fox News photoshopping. But is it really communication, or manipulation? And if the latter, does it not fit more under the rubric of “subliminal advertising” than defamation?

b) Another challenge to a defamation suit might be whether the image is genuinely harmful to the person’s reputation. The closer one looks at it, the more obvious it becomes that the proportions of the face are impossible. But note that the clip was shown very briefly in its original context, leaving no time to scrutinize it.

What about “ugliness” is “damaging”? Enlightened individuals judge others on the basis of the content of their character, not their looks; but in this respect America may be becoming less enlightened every day. Here some perplexities raised in recent cases about allegations of homosexuality may be relevant. The question is whether, in an increasingly tolerant society, being alleged to be homosexual is still libelous. Two recent cases come out in diametric opposition:

Klepetko v. Reisman, 41 A.D.3d 551 (N.Y. App. Div. 2007) (”The false imputation of homosexuality is “reasonably susceptible of a defamatory connotation” )

Greenly v. Sara Lee Corp., 2008 WL 1925230 (E.D. Cal. 2008) (”[c]ontinuing to characterize the identification of someone as a homosexual [to be] defamation per se [demeans the lives of homosexual persons]“.)

To continue the analogy: just as sodomy laws were only repealed gradually, only in the early 1970s were certain “ugly laws” repealed. One such law ordered that “‘No person who is diseased, maimed, mutilated or in any way deformed so as to be an unsightly or disgusting object or improper person [is] to be allowed in or on the public ways or other public places in this city . . . under a penalty of not less than one dollar nor more than fifty dollars for each offense.”

In conclusion; I imagine that a defamation case would be a tough one for either Reddicliffe or Steinberg, but admittedly I have not researched “defamation by distorted image.” Edward Tufte has documented the damage that “fudged photos” can do to science, but it’s not clear that much can be done about them in the political public sphere.

So what’s to stop the unflattering depiction, already a mainstay of negative political ads, to gradually morph into the photoshopped truthiness Fox has pioneered? Perhaps the only answer is to fight fire with fire; Olbermann might air the work, say, of Kenneth Tin-Kin Hung . . . :

(Hung, still from Because Washington is Hollywood for Ugly People)

One thing is clear: if one side in politics adopts the tactic with impunity, the other side has clearly not read its Schmitt and Niebuhr if it decides merely to “turn the other cheek.”

PS: Here is the clip in context:

And here is Reddicliffe’s transmogrification:

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 [...]]]> 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.

This is where Glenn Greenwald’s tireless analysis of media coverage proves a helpful empirical confirmation of some of Wolin’s theoretical claims. He shows that some leading anchors disclaim the responsibility to ask even basic follow up questions to officials on fundamental issues of war and peace. He also notes extraordinary government-media cooperation in managing public opinion about the war. And most embarrassingly, the leading TV news outlets still appear not even to have acknowledged the NYT expose on the subject.

I can foresee some of the George Mason school’s response at this point–if the public has been misinformed about war, why am I confident that collective action in any other area will work? I can only say that it appears to me uniquely in war-situations that the government has so much at stake in aggrandizing its own popularity by focusing fear on an external enemy. And while all individuals have a direct experience of health care or infrastructure, a much smaller percentage of American voters has actually been in Iraq. As Wolin notes, in a post-draft era, for the vast majority, “War is an action game, played in the living room, or a spectacle on a screen, but, in either case, not actually experienced. Ordinary life goes on uninterruptedly: work, recreation, professional sports, family vacations.”

So while neo-con Michael Ledeen even now calls for conflict with Iran entailing “sacrifices on many fronts: in the comforts of our lives, indeed in lives lost, in the domestic focus of our passions – careers derailed and personal freedoms subjected to unpleasant and even dangerous restrictions – and the diversion of wealth from self-satisfaction to the instruments of power,” we still have yet to raise taxes to pay for the extraordinary borrowing binge that funds the war in Iraq. Given these documented and predictable biases for war, I hope that some of the safeguards outlined by Bruce Ackerman are adopted before the next one is launched.

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, [...]]]> I’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.

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. [...]]]> [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.

But this view of SE and the jurisprudence it will produce is too rosy. As we illustrate in our paper, the “facts” a reasonable jury would find after watching the Scott tape are culturally dependent (and also influenced by demographics, wealth, etc.). In a future where more legal cases are resolved based on SE, the danger is that law will ignore this prism effect, and simply embed the evidence as if it resolved the question of “what happened.”

This isn’t to say, of course, that surveillance evidence is a bad thing in and of itself. It can improve accuracy, reduce frivolous litigation, and deter wrongdoing (think about the various aspects of the CIA taping controversy). But, as I suggested in my first post on Scott, the idea that surveillance evidence will distill litigation into a simple search for truth is fundamentally misguided:

[C]ourts’ ordinary role to [is] determine legal facts, instead of the truth of the “event.” We don’t read opinions to tell us what happened. We read them to tell us what facts the courts have found. That is why innocence is not, ultimately, a legal defense: the facts found by a jury control. This separation is a necessary part of the dispute resolution system, enabling finality. [Scott] has the potential to destabilize this delicate regime in areas that would likely matter to some folks more than the civil rights suit of one speeder.

Not convinced? Read the paper (again?). It speaks for itself.

(Folks interested in this topic might also like Jessica Silbey’s Judges as Film Critics: New Approaches to Filmic Evidence)

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 [...]]]> 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. . .

As James Grimmelmann notes, there are a few exceptions to the immunity for opinions:

The relationship of subjective opinion to objective fact . . . is not simple. Thus, for example, Milkovich v. Lorain Journal Co., while stating the rule that the Constitution shields opinions, leaves in place two significant exceptions. A statement of opinion may imply an underlying fact (the Court’s example: “In my opinion John Jones is a liar.”), and even a statement of opinion may be false if not honestly held (the Court’s example: “I think Jones lied,” where the speaker thought nothing of the sort).

In this context, is the “assassin” joke only funny if there is some objective implication of imbalance or impropriety regarding the person whom it’s aimed at? I find the case a bit difficult because Jerry Seinfeld (the person) has sometimes glided effortlessly between being a certain persona and playing one. For example, consider this video of him on Larry King Live:

Is Seinfeld here seamlessly sliding into “playing an obnoxious character” or is he being an obnoxious character? Is this the “true self” speaking, or spinning out some subtle humor (that the miffed King appears not to be in on)?

Having listened to his talk at the NY Academy of Sciences, I’m reminded of Stephen Pinker’s takes on the slipperiness of language, here related by reviewer William Saletan:

Language is a social medium with social purposes. Sometimes, we use it not to communicate facts about the world but to filter them. We euphemize bribes as “contributions” to preserve the dignity of lobbyists and legislators. We phrase treaties vaguely because if they were clear, nobody would sign them. . . . . We complain about doublespeak but rely on double meanings.

Turley has the following take on Seinfeld’s double meanings:

While he appears to be joking, he is also clearly portraying Lapine –at a minimum — as unbalanced. . . . Terms like wacko can be claimed to have a more innocent meaning. Under the principle of Mitior sensus, “when words have two meanings, lenient and severe, they will always be construed in the more lenient sense.” Yet, this is generally a jury decision and the Seinfelds and their publisher will first be subject to discovery — a potentially risky business.

Having read a few cases in this area, I’ve been worried by some judges’ willingness to take every potentially defamatory statement piecemeal, characterize them individually as opinions or “obvious hyperbole,” and dismiss the underlying defamation case. A series of innuendoes, jokes, dismissals, and jibes can probably undermine a reputation far more effectively than one false fact.

On the other hand, Seinfeld himself has satirized the lengths he would have to go to in order to avoid any unwanted overtones–not that there’s anything wrong with that!

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”? [...]]]> 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.

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 [...]]]> In 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:

• Fantasy’s Apocalyptic Turn
• The Law and Hard Fantasy Interview Series
• An Interview with Pat Rothfuss