Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators [...]]]> Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

So, as the mood for fiscal austerity haunts the halls of Congress these days, it makes sense to expect spectrum auction policy to make an appearance in the Jobs Act.  As presented [...]]]> At first glance, President Obama’s proposed American Jobs Act was an unlikely place to find significant reforms to the laws governing the allocation of prized electromagnetic spectrum licenses. Since the 1990s, however, FCC-administered auctions have been a major source of revenue for the U.S. Treasury, generating billions of dollars for the exclusive license to commercialize coveted bands of the spectrum. Just a couple years ago, for example, the 700 MHz band once occupied by the major broadcasters generated a total of almost $20 billion in successful bids from the likes of AT&T and Verizon.

So, as the mood for fiscal austerity haunts the halls of Congress these days, it makes sense to expect spectrum auction policy to make an appearance in the Jobs Act.  As presented to Congress, Obama’s jobs law would commit a meaningful portion of an expected $28 billion or so of revenue from spectrum auctions to help pay down the U.S. deficit. The so-called “incentive auctions” would be for a band in the spectrum jealously controlled by major broadcasters today. The broadcasters would get a piece of the expected $28 billion for the trouble of participating. Another portion would be devoted to the development and operation of a national wireless public safety network. The remainder would go to reducing the debt or closing budget deficits. A relatively small contribution to the cause, but a contribution nevertheless.

The auctioning of rights to the spectrum, however, is not just meant to plug holes in the federal budget. The incentive auctions in the jobs bill are meant to partially redress one of the more pressing problems in telecommunications law and policy today: spectrum scarcity in the face of booming demand for high-bandwidth wireless services, smartphones, and tablets. For someone who spent years pondering the problem of scarcity in the first law to regulate the commercial use of the spectrum, these developments beg the question: How did scarcity resurface so seamlessly after about two decades of being poopoo’ed as the chief reason for spectrum regulation?

Many experts and observers agree that growing enterprise and consumer interest in mobile cloud services, for example, are putting pressure on wireless carriers and policymakers to find more bandwidth in the spectrum. This, in spite of the drop in general consumer spending and confidence. If anything, according to Pew, many consumers in these hard economic times are relying on wireless services for telephony and broadband access over traditional wireline services.

In response to this demand, the White House and the FCC have sought to make underutilized portions of the spectrum  available to firms who, in turn, are investing in and developing “smart” and dynamic spectrum sharing technologies.

Today’s urgent talk of spectrum scarcity is evocative of the first federal regulation of commercial radio. Almost ninety years ago, then-Commerce Secretary Herbert Hoover convened four radio conferences in order to reach a consensus among policymakers, engineers, entrepreneurs, and enthusiasts on how to ration and award commercial access to the electromagnetic spectrum. Signal interference and scarcity were the name of the game, as there were more applicants for broadcast licenses than there were available frequencies. The famous radio conferences settled on a licensure regime that would be administered by a federal agency comprised of expert commissioners. These sages, in turn, would award licenses to broadcasters who demonstrated a commitment to the “public interest” in their programming in public comparative hearings. The spectrum, Hoover explained, was a valuable public resource that was too scarce to be left to the whims of industry. This, from a man who famously ran the Commerce Department on the grounds that the best way to regulate industry was through cooperation with industry.

Communications policymakers and the courts would subsequently turn to the scarcity rationale  until the 1980s to justify a sweep of regulations related to the diversity and structure of the industry, the wide distribution of public-regarding news, and, more controversially, broadcasting content. Never mind that, as Coase put it in his 1959 critique of the FCC, scarcity is one of the central problems in all of economic life. Never mind, moreover, that policymakers knew that spectrum sharing technologies were on the horizon even as early as the 1930s. Regulators and courts did this even as new communications platforms (i.e., cable and satellite) expanded consumers’ media options, ostensibly undercutting the pertinence of spectrum scarcity. They did this to vindicate important communications norms in public law. Congress finally opened the door to spectrum auctions in the early 1990s, having grown disaffected with the inefficiencies in the comparative hearing process first identified by Coase decades before.

Today, the scarcity rationale for federal regulation of the electromagnetic spectrum is simply not as legally salient as it once was. Yet, here policymakers and industry leaders are, almost ninety years later, invoking it alone to justify a series of positive regulatory interventions that could further consolidate the market power of the biggest players in the industry. To be sure, there are cost advantages to having the companies most motivated to pay for spectrum licenses acquiring those licenses. But policymakers should not get carried away with this scarcity or debt-management talk. Part of the impetus for federal regulation in the 1920s was to vindicate communications norms in public law that were outside of the competence of industry and engineering.

The FCC today employs a variety of auction designs to ensure successful participation by small businesses in the auction process. But, if the spectrum is as valuable as the agency suspects, it will do well to consider whether auction design is sufficient to balancing the interests in innovation, competition, diversity, and wide consumer participation, never mind whether the monies the auction generates will actually help balance the budget. Expanding the availability of spectrum makes sense, as long as it is tied to these other foundational norms in communications law and policy.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on [...]]]>

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.

Research tells us that 90% of people seek advice from family and friends as part of the decision making process. This “Friend Effect” is apparent in most of our decisions and often outweighs other facts because people feel more confident, smarter and safer with the wisdom of their trusted circle.

Today, Bing is bringing the collective IQ of the Web together with the opinions of the people you trust most, to bring the “Friend Effect” to search. Starting today, you can receive personalized search results based on the opinions of your [...]]]> A small corner of the world of search took another step toward personalization today, as Bing moved to give users the option to personalize their results by drawing on data from their Facebook friends:

Research tells us that 90% of people seek advice from family and friends as part of the decision making process. This “Friend Effect” is apparent in most of our decisions and often outweighs other facts because people feel more confident, smarter and safer with the wisdom of their trusted circle.

Today, Bing is bringing the collective IQ of the Web together with the opinions of the people you trust most, to bring the “Friend Effect” to search. Starting today, you can receive personalized search results based on the opinions of your friends by simply signing into Facebook. New features make it easier to see what your Facebook friends “like” across the Web, incorporate the collective know-how of the Web into your search results, and begin adding a more conversational aspect to your searches.

The announcement almost perfectly coincides with the release of Eli Pariser’s book The Filter Bubble, which argues that “as web companies strive to tailor their services (including news and search results) to our personal tastes, there’s a dangerous unintended consequence: We get trapped in a “filter bubble” and don’t get exposed to information that could challenge or broaden our worldview.” I have earlier worried about both excessive personalization and integration of layers of the web (such as social and search, or carrier and device). I think Microsoft may be reaching for one of very few strategies available to challenge Google’s dominance in search. But I also fear that this is one more example of the “filter bubble” Pariser worries about.

Like Evgeny Morozov, Pariser persuasively demonstrates the downside of “community building” on the web; filter bubbles can be astonishingly insular. It’s an important message. Oren Bracha and I have shown the critical importance of search technology in affecting both users’ autonomy and possibilities for democracy. And as I noted last summer:

Heraclitus wrote that “for the waking there is one world, and it is common; but sleepers turn aside each one into a world of his own.” In our age of fragmented lifeworlds, narrowcasting, and personalization, internet searchers are increasingly like Heraclitus’s sleepers. They will increasingly consume customized media on the persons and events they take an interest in. Many will unwittingly enter a media environment shaped in ways they can’t understand. While some authors have lamented the effects of the “Daily Me” on politics, and others have noted the Kafkaesque implications of black box databases, few have considered the intersection of these trends. They threaten to make a scholarly understanding of media consumption difficult, as we have less and less objective sense of what’s really being presented as choices.

It’s a real tribute to Pariser’s persistence that he convinced Silicon Valley engineers to acknowledge and grapple with this reality. We’ll need many more thinkers like him to wake us from our technological somnambulism.

On the other hand, perhaps the integration of social networking into search can make search results a bit more understandable to users. Pariser suggests that even people inside Google can’t fully understand how its algorithms result in a given information environment for a user of its services:

Even if you’re not logged into Google, for example, an engineer told me there are 57 signals that the site uses to figure out who you are: whether you’re on a Mac or PC or iPad, where you’re located when you’re Googling, etc. And in the near future, it’ll be possible to “fingerprint” unique devices, so that sites can tell which individual computer you’re using. . . .

As Google engineer Jonathan McPhie explained to me, [personalization is] different for every person – and in fact, even Google doesn’t totally know how it plays out on an individual level. At an aggregate level, they can see that people are clicking more. But they can’t predict how each individual’s information environment is altered.

In general, the things that are most likely to get edited out are the things you’re least likely to click on. Sometimes, this can be a real service – if you never read articles about sports, why should a newspaper put a football story on your front page? But apply the same logic to, say, stories about foreign policy, and a problem starts to emerge. Some things, like homelessness or genocide, aren’t highly clickable but are highly important.

If people have to choose between algorithmic and friend-based personalization, the latter may be more transparent than the former. On the other hand, the Bing-Facebook combine isn’t rushing to make its own methods public, so maybe it’s a wash.

Volume 58, Issue 4 (April 2011)

Articles

Comments

An interesting question raised by law student Ben Arrow’s Note Real-Life Protection for Fictional Trademarks (which has garnered lots of attention, see here, here, and here) is whether a use in fiction constitutes a “use in commerce” sufficient [...]]]> Every year, law students face exams with characters and products ripped from popular television, movies, and YouTube videos (a wiser course than building a torts or crime problem around your colleagues, see Orin Kerr’s post here).  What is true for the goose is no doubt true for the gander: many may want to buy fictional products from popular culture.  For instance, Omni Consumer Products Corporation, a “defictionalizing” company, licenses real-world versions of popular fictional products like “Sex Panther,” the fictional cologne from Anchorman: The Legend of Ron Burgundy.

An interesting question raised by law student Ben Arrow’s Note Real-Life Protection for Fictional Trademarks (which has garnered lots of attention, see here, here, and here) is whether a use in fiction constitutes a “use in commerce” sufficient to reserve priority rights in a trademark.  Two cases have addressed real-life protection for fictional trademarks: Daily Planet from S.D.N.Y. and Duff Beer from Australia.  Arrow explains that the courts, finding real-life trademark infringements, hand-waived on the priority analysis.  For instance, in Duff Beer, the court assumed that Duff Beer had used the mark (presumably because it is famous and thought the breweries were free riding on, well, something).  But Duff Brewery never sold anything in commerce, because it isn’t real (that is at least true if you buy the fact that Homer Simpson isn’t really drinking anything).  So maybe Duff Beer is not a trademark for anything.  A real-world Duff Beer might not be an infringement after all; you can’t infringe a non-trademark.

Many of our nation’s landmark free speech decisions are not about heroes–several are about flag-burners, racists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should [...]]]> At Balkanization, Professor Marvin Ammori has a thoughtful post on the Wikileaks story.  Professor Ammori, who will be guest blogging with us soon, gave me the thumbs up on reproducing his post.  Hopefully, it will spark some interesting discussion on CoOp.  Here is Ammori’s post:

Many of our nation’s landmark free speech decisions are not about heroes–several are about flag-burners, racists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should the U.S., which may have already empanelled a grand jury in Virginia, prosecute him as a criminal under the Espionage Act of 1917 or under the computer fraud and abuse act?

Though I have spent years advocating for Internet freedom, I don’t think Assange is a hero for leaking these diplomatic cables.  According to plausible reports, the leaks have harmed U.S. interests, made the work of U.S. diplomats more difficult, likely endangered lives of allies, and may have set back democracy in Zimbabwe and perhaps elsewhere.  Even some of Assange’s friends at Wikileaks are doubting Assange’s heroism: a few left him to launch a rival site and to write a tell-all book.  Whatever the harms of secrecy and over-classification, Assange’s actions have caused tremendous damage.  No wonder polls show nearly 60% of Americans believe the U.S. should arrest Assange and charge him with a crime.

My initial reaction was similar.  I thought that if a case could be made against Assange, one should be made.

But, as time passed, the political and legal downsides of prosecution came into clearer focus, and I am rethinking that initial reaction.  Despite still believing Assange’s actions have been harmful, I have now come to the opposite conclusion—not for the benefit of Assange, but for the benefit of Americans and of the United States.

Prosecuting Assange could do more harm than good for our freedom of the press and would inflict further harm on diplomatic effectiveness.  Despite the appeal of prosecuting Assange, it is not worth the cost.  We will not get the cables back.  We will not deter aspiring Wikileakers, as both our allies and our enemies know.  We will, as Dean Geoffrey Stone has best articulated, likely sacrifice established principles of freedom of the press in doing so.

Here are some thoughts on why we should think twice about prosecuting Assange, categorized by harms to the U.S.’s freedom of the press and then harms to America’s diplomatic effectiveness. And, in advance, I thank the many scholars, policy experts, and friends who took the time to give me thoughts on earlier drafts of this post.

Harms to American Freedom of the Press

1. The balance between information security and freedom of the press generally permits both government secrecy and publication.

Geoffrey Stone, a leading speech scholar at the University of Chicago, recently explained to Congress how the Supreme Court has struck that balance between transparency and press freedom.

Transparency is not an unqualified good. While some information is overclassified, too much transparency has its own problems, as professors Larry Lessigand Tim Wu, among others, have pointed out.  Keeping some information private is sometimes essential for government and diplomacy.  Releasing information can be harmful; for example, releasing the names and addresses of all our covert spies or the world’s critical infrastructures harms US interests.

As Stone explains, the Supreme Court has recognized that government may overstate the harms of publication and underestimate the harms of secrecy.  The judiciary is not well equipped to second-guess this bias on a case-by-case basis.  So the Court struck this balance: government is allowed constitutionally to over-protect information and to secure it, while the press is perhaps over-protected to publish leaked information.  This is an obviously imperfect mechanism, but we live in an imperfect world, and other options are even more imperfect.

As a result, the burden of securing information falls on the government, not the press.  Jack Goldsmith reaches the same conclusion:

It is also important to remember, to paraphrase Justice Stewart in the Pentagon Papers, that the responsibility for these disclosures lies firmly with the institution empowered to keep them secret: the Executive branch.

This is not to blame the Executive branch; it is just to emphasize that securing information is the usual remedy to balance transparency, necessary secrecy, and a free press.  Prosecuting publishers and perceived journalists generally is not.

2. If the government can prosecute Assange for publishing illegally obtained information, then it can prosecute most journalists.

According to standard First Amendment doctrine, the press generally can publish truthful information leaked to the press, even if someone else acted illegally to obtain the information.  The Supreme Court said as much in Bartnicki v. Vopper and the Pentagon Papers case.

Administration officials and congressional staffs often leak information to the press for their own purposes—though they often leak to “friendly” reporters they hope to influence.  If the government could punish journalists for publishing classified information, Bob Woodward would be sitting in solitary confinement for the top-secret leaks in his last book alone.  Perhaps because of these realities, in 2000, President Clinton wisely vetoed a bill that would have criminalized all unauthorized disclosures.

Despite Woodward’s inside track to potentially over-classified information, Assange may be no less a journalist than someone like Woodward.

3. Assange looks more like a 21^st Century journalist than a terrorist.

The First Amendment protects a lot of potentially harmful speech, but does not and should not protect all speech. Some speech that encourages criminal behavior—like detailed “how-to” instructions on how to murder people or manuals for mixing homemade explosives—rightfully receive little First Amendment protection. Are Assange’s publications really not journalism, but more like this unprotected speech?

In thinking about this question, I have found Eugene Volokh’s analysis of “crime-facilitating speech” immensely helpful. I will not summarize his 100-page argument, which examines many speech areas. I will simply note that he ends up proposing a standard that, while speech-protective, strikes a balance that captures truly dangerous speech unworthy of protection. For him, this category includes speech, if published, with almost no non-criminal value or leading to plague or atomic explosions. Nobody has made the case that Assange’s speech falls in those categories.

Wikileaks looks less like a hit man manual and more like the journalism of tomorrow (or yesterday). Dozens of traditional and new publications (and TV channels) have experimented with user-generated news content, including uploaded video and stories. Assange has recently been clothing his actions as journalism. Rather than engaging in a document dump, Assange has released less than 1% of the 250,000 cables, and is working with several newspapers (The Guardian, Der Speigel, El Pais, Le Monde, the New York Times) to vet and redact every cable before publishing it.  His practices and those of journalists are converging. As online news models evolve and change, prosecuting Assange may set a precedent for limiting some beneficial experimentation with these new models.

4. If the government can prosecute Assange for “conspiring” with his source, all journalists are conspirators.

According to Justice Department leaks to the New York Times, the Justice Department is considering bringing a case based on Assange conspiring with his source.  As law professor Jack Balkin observes, if Assange conspired, many journalists “conspire” with their sources, sometimes over drinks at the Mayflower Hotel, sometimes by email. Even if the standard for conspiracy is higher than “doing drinks” at a hotel, it would sweep up at least some journalists, who no doubt worked with their sources as closely as Assange did with his source. Such conspiracy claims could burden freedom of association, including anonymous association, which receives constitutional protection.

5. If the First Amendment doesn’t protect Wikileaks, it doesn’t protect The Economist or Roberto Benigni.

Some argue that Assange has no First Amendment right because he is an Australian non-resident. But, whatever Assange’s rights as speaker, Americans have rights as readers. The Supreme Court has held (in Lamont v. Postmaster General) that Americans, like Wikileaks defender Ron Paul, have free speech rights, including the right to access unprotected international speech.

Taking it one step further, to extradition and arrest, I doubt the U.S. government could arrest executives at publications like The Economist, The Guardian, BBC, and Le Monde, or movie makers like Roberto Benigni, without burdening the speech rights of American citizens.  As a practical reality, if not as a matter of formal doctrine, prosecuting popular foreign speakers burdens American speakers.  Plus, prosecuting Economist.com for something NYTimes.com can publish would arguably violate some of our trade commitments.  And do we want to encourage China to use the same logic of extradition and prosecution against American and European publications, websites, and executives that allegedly violate Chinese law?

6. If the government can pressure private companies to silence Wikileaks, it can silence anyone.
Senator Lieberman’s staff seemed to apply some governmental pressure to Amazon, which found a violation of its broadly worded “terms of service” to remove Wikileaks from Amazon servers. (The administration has not applied similar pressure, to my knowledge.)  Paypal and Mastercard refused to process donations, applying a standard far lower than the standards applying to government.

I agree with those who view these moves as an Internet “tax on dissent.” To put this in perspective, what if Amazon interpreted its terms of service to kick controversial politicians off its servers?  What if Paypal stopped processing payments to controversial newspapers, political blogs, or … Klansmen and flag burners?  What if Mastercard, after receiving calls from a Senator, refused to process donations to the Palin or Romney campaigns, while processing donations for the Obama reelection?  The affected speakers would be harmed and would have no legal means to defend themselves by challenging the government’s attempt to silence them.

The New York Times has raised concerns about these actions: “A handful of big banks could potentially bar any organization they disliked from the payments system, essentially cutting them off from the world economy.”

U.S. administration officials should not help set a dangerous precedent of enlisting private parties to kick the legs out from political opponents.  Again, what would we think if the Chinese government engaged in similar activity with their financial intermediaries and their disfavored sites?

Harms to American Diplomacy

1. We will possibly fail to convict Assange, while handing autocrats an argument to justify politically motivated prosecutions.

It doesn’t really matter if the (dedicated, brilliant) lawyers at the Department of Justice come up with a compelling case that has eluded law professors like Jack Balkin, Jack Goldsmith, Geoffrey Stone, and Steve Vladeck.

As these professors and others have noted, the legal case faces several potential hurdles: First Amendment issues, Espionage Act issues, conspiracy law issues, and extradition law issues for “political” crimes.

If the lawyers at Justice build a credible case, what follows will be a highly controversial and politically charged extradition proceeding that will draw out negative consequences for our foreign policy and international credibility—regardless of the ultimate outcome.

And then, at the end of this controversial process, after months or years, Assange comes to trial in a U.S. court.  Then, even in a best-case scenario, the case might fail for any of a dozen reasons.  Even if a conviction is achieved, at what cost?  And to what end?  Will a single piece of data be recovered?  Will the martyrdom of Assange deter others from following in his footsteps? The long-term impact of this effort will likely come out badly for our nation, no matter what the outcome of the legal proceeding.

2. We will look weak and hypocritical, affecting our moral standing abroad and at home. Could we really tell autocrats in other countries that they shouldn’t prosecute journalists or political critics? Perceptions will be a key factor.  Prosecuting Assange would validate an international perception, whether accurate, among allies and foes alike that America operates on a double standard—a perception the Obama administration has taken great pains to reverse.  The decline in credibility triggered by apparently validating that perception will ripple across our international relations. As Clay Shirky notes, autocrats will certainly use our actions to justify political prosecutions.

Conclusion
I could be wrong; this controversy does not have easy answers.

I end up, with Assange, where I do with racists and Klansmen. Despite the damage he has caused, the costs to our nation of prosecuting his speech outweigh the benefits. I hope our nation’s lawyers consider the merits of this position in determining how best to respond to Assange and Cablegate.

There is something that bothers me about Tim’s analysis (or, at least, raises a question). There is no doubt that he is a fan of as much openness as possible, as demonstrated by his support for net neutrality.  More or less, the bad guys in his story are monopolists (AT&T, RCA, Paramount) and the heroes are the rebels who fought them.  In general, I agree with this narrative.  As someone old enough to [...]]]> I am reading Tim Wu’s terrific new book on how information industries oscillate between decentralized and consolidated business models and the role that regulatory policy plays in that cycle.  I highly recommend that you pick this up, and hope to organize an online symposium about this important book here on CoOp sometime soon.

There is something that bothers me about Tim’s analysis (or, at least, raises a question). There is no doubt that he is a fan of as much openness as possible, as demonstrated by his support for net neutrality.  More or less, the bad guys in his story are monopolists (AT&T, RCA, Paramount) and the heroes are the rebels who fought them.  In general, I agree with this narrative.  As someone old enough to remember the Bell system, you weren’t missing anything.  But I’m hesitant to embrace this openness norm completely.

The toughest case is the studio system for movies.  The flaws of that vertically integrated oligopoly are not hard to describe.   Actors were bound by long-term contracts that denied them the fruits of their labor (much like baseball players before free agency).  Censorship was pervasive, as Tim correctly points out.  And yet . . .

People still refer to this time as Hollywood’s Golden Age.  Now I concede that movie tastes are not uniformly shared, but if you ask most people when better movies were made, would they say 2010 or 1939?  (OK, that’s not an entirely fair comparison.  1939 was the best year of the studio system, and movies did not have the kind of competition then that they get now.) The point is that the studio system produced outstanding art.  As a result, the issue of how regulatory policy should work (or stay its hand) for information industries is not so simple.

This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party [...]]]> A Hispanic teenager listening to music through headphones, a masturbating man, 3 young caucasian women (probably American), two young middle eastern men dressed in army fatigues and a child with a kafiah covering his face shouting something in Arabic and smiling, another masturbating man, 3 japanese young women.

This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party can push a button that spins the wheel again at any time to be connected with a new partner, and there is no penalty for doing so.

Perhaps 31-year-old law professors are not the favored species in this realm, but I was “nexted” almost immediately in each of the cases except the middle eastern men at whom I started laughing and they laughed back as well. At some point, though, I felt uncomfortable enough myself that I ended the interaction.

Chatroulette is only the newest and strangest instantiation of a phenomenon I’ve been thinking about – virtual friendship. Can one be friends with someone that one has never met, and what kinds of benefits do this form of friendship offer over or to compliment non-virtual friendship? In recently watching Julie and Julia, I was struck by a scene where Julia meets up with the woman, Avis, she has been writing throughout the film.  We discover that the two women have never actually met in person despite being extremely close; they have just been pen pals for years.

The disadvantages of virtual friendship are pretty straightforward, but what might the advantages be? Total honesty if it retains an air of anonymity or removal from one’s social circle? The ability to compose oneself (like a piece of music), that is present a very specific slice of oneself? Many people I’ve talked to of a certain age (usually under 35, those who have had socializing technologies for some period of their youth) have had a virtual friend or two at some point.  These relationships, however, do not seem very long-lived, certainly not like the decade long correspondence of Avid and Julia. Is that just because our social circles are thicker or there is more competing stimuli than in earlier periods?

To add a legal angle on chatroulette, after seeing Robin Wilson present her paper on Sex Play In Virtual Worlds at a conference this summer, I wondered whether the masturbating men on the site might be subject to criminal liability in some jurisdictions if some of their viewers turned out to be children.  Robin (she’ll correct me if I have this wrong) was of the view that on Second Life or other virtual environments that don’t even involve actual images of actual people, under existing doctrine in some states adults can be criminally liable for sexually suggestive remarks and virtual activities.  Under existing doctrine this is true even if those minors represent themselves as adults, the perpetrator has a good faith belief they are adults, and even if the service has an 18+ policy (even if enforced by something like requiring a credit card).  If that’s right, the comparably less virtual and less regulated domain of chatroulette would seem to be full of potential criminal liability.  I am neither a criminal law nor a cyberlaw scholar so I will be curious what those with more expertise think….

A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to [...]]]> It’s an honor to introduce Deborah Hellman and the participants in this cyber-symposium. In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article “Money Talks, But It Isn’t Speech.” Justice Kennedy based the majority opinion in Citizens United on the assumption that spending and speech are interchangeable. But what if this equivalence does not hold? Might a future Court declare Citizens United “not well reasoned” because it “puts us on a course that is sure error” (to borrow Kennedy’s characterizations of the precedents that Citizens United overruled)?

A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to some provisions in the recently passed health reform legislation. But Citizens’ United has proven far less popular than health reform; “the court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats,” and by 80% of the nation as a whole. Though I was ready to give up on campaign finance regulation three years ago, numbers like these convince me that the Court needs to listen to scholarship like Hellman’s now more than ever.

At least some justices have shown remorse for deregulatory dogmatism. Might the Court back down from its current war on campaign regulation? If it is so inclined, will arguments like Hellman’s help it “see the light” and reclaim the egalitarian roots of democratic governance? To consider these and other issues raised by Hellman’s rigorous and illuminating paper, we’ve invited an all-star cast of legal thinkers:

Erwin Chemerinsky
Louis Michael Seidman
Lawrence Solum
Zephyr Teachout

Some of our regular crew of perma-bloggers & guests will likely have some contributions, as well. Whatever you think of campaign finance reform, I’m confident you’ll find both Hellman’s article and our guests’ commentaries to be bold and invigorating contributions to legal theory.

Photo Credit: Rob Lee/Flickr, Money Shirt.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and [...]]]> In a previous post, I analyzed the intrusion upon seclusion claim in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a case where the Supreme Court recently granted certiorari.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”  A jury found for Snyder, awarding him millions of dollars in damages.  The Fourth Circuit reversed on First Amendment grounds.  Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In this post, I’ll analyze the intentional infliction of emotional distress issues.  The tort provides:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (2nd) of Torts, Sec. 46.

Here are the questions being considered by the Supreme Court:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

I’ll address each in turn.

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

Hustler Magazine, Inc. v. Falwell, 485 U.S. 86 (1988) involved a parody ad consisting of a fake interview between the Reverend Jerry Falwell and his mother, suggesting he had sex with his mother.  He won a jury verdict for intentional infliction of emotional distress.  The Supreme Court held that the First Amendment barred liability unless Falwell (a public figure) proved actual malice:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

In Snyder v. Phelps, the district court had applied the standard in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which provides an exception to the actual malice standard for “private figures.”  But the Fourth Circuit reasoned that Phelps’s speech involved a matter of public concern and wasn’t directed specifically at Snyder.  Whether Snyder was a public or private figure was irrelevant.

Specifically, the court stated:

In assessing the Defendants’ First Amendment contentions, the [district] court focused almost exclusively on the Supreme Court’s opinion in Gertz, which it read to limit the First Amendment’s protections for “speech directed by private individuals against other private individuals.” Snyder v. Phelps, 533 F. Supp. 2d 567, 577 (D. Md. 2008). The court therefore assessed whether Snyder was a “public figure” under Gertz and whether Matthew’s funeral was a “public event.” See id.17

The Supreme Court has created a separate line of First Amendment precedent that is specifically concerned with the constitutional protections afforded to certain types of speech, and that does not depend upon the public or private status of the speech’s target. See Milkovich, 497 U.S. at 16; Hustler Magazine, 485 U.S. at 50. Thus, even if the district court (as opposed to the jury) concluded that Snyder and his son were not “public figures,” such a conclusion alone did not dispose of the Defendants’ First Amendment contentions. In focusing solely on the status of the Snyders and the funeral, and not on the legal issue concerning the nature of the speech at issue, the court failed to assess whether the pertinent statements could reasonably be interpreted as asserting “actual facts” about an individual, or whether they instead merely contained rhetorical hyperbole. See Milkovich, 497 U.S. at 20; CACI, 536 F.3d at 293. Whether a statement can reasonably be interpreted as stating actual facts about an individual is a question
of law for the court.

The court concluded later on:

A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts. In addition, the words on these signs were rude, figurative, and incapable of being objectively proven or disproven. Given the context and tenor of these two signs, a reasonable reader would not interpret them as asserting actual facts about either Snyder or his son.

I’m inclined to agree.  Although I find the speech by Phelps and the others at his church to be despicable, it isn’t specifically directed at particular individuals.  They picket at particular funerals, but their message is directed more generally at making anti-gay and anti-US comments, as well as broad attacks against the troops.  Gertz doesn’t fit because it involved a defamatory claim against the plaintiff, and there is no defamation against Snyder here.

Hustler, though, doesn’t directly apply because it involved a public figure.  Snyder isn’t a public figure.  Hence the issue before the Supreme Court — what to do in this case, which doesn’t fall under Gertz or Hustler.

I think that the Hustler rule should apply here.  The speech involved in Snyder was crude, obnoxious, and ridiculous, but it wasn’t directed at specific people and couldn’t reasonably be interpreted in making any factual assertions about specific people.  It was certainly odious speech and caused Snyder emotional distress.  But we tolerate a lot of speech that deeply offends people.  I can call you a jerk, an idiot, and express my opinions about you freely, no matter how crude.  The fact you might be very upset about this is outweighed by the First Amendment protection of free speech.  I might also express views that you find offensive: “All Republicans are selfish idiots” or “All Democrats are weak-minded fools.”   This speech might be insulting to you, but it’s protected by the First Amendment.

Where I start to run into problems is when I invade your privacy or defame you.  If I just say something that offends you, it’s not enough — and shouldn’t be enough — to allow you to prevail in a lawsuit.  That’s because of the danger that unpopular speech will strike many people as offensive, and it will be easy for juries to be offended to and punish the speaker.  If I say that “Yankee fans are morons” in New York City, I certainly wouldn’t want to face a jury trial there brought by an offended fan.

In On Liberty, John Stuart Mill argues (persuasively in my opinion), that people should be free to say and do what they want so long as they don’t harm others (self-regarding acts).  He examines the objection that there are few purely self-regarding acts since others might be deeply offended by a person’s conduct or speech:

There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings, by persisting in their abominable worship or creed. But there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it. And a person’s taste is as much his own peculiar concern as his opinion or his purse.

I agree with Mill.  We need to tolerate a lot of offensiveness in society.  There are no purely self-regarding acts, since our behavior will invariably offend some people who hold different values and opinions.  But if the law were to recognize being offended as an injury, it would swallow up the category of self-regarding acts.  Therefore, the law must not recognize as a cognizable injury merely being offended (or even deeply offended).

On the other hand, we must protect against direct attacks, false rumors, invasions of privacy, and so on.  Speech used as a weapon to attack specific people and cause them emotional distress should be actionable.  Such speech should rise above mere insults or offensive messages — it should be defamatory, invasive of privacy, or harassing.  A line should be drawn between generally offensive speech and speech that is specifically targeted at particular individuals so as to injure them.

I’d be all for allowing Snyder to recover against Phelps if Phelps invaded the funeral or disrupted it with his speech.  But the facts indicate this didn’t happen here.  Snyder found out about Phelps’s speech afterwards, and he became offended (and rightly so).  But I think that as offensive as Phelps’s speech was, the Fourth Circuit was correct — the speech wasn’t directed at Snyder, and therefore the first question posed to the Supreme Court above isn’t entirely accurate.  This wasn’t speech about a private matter — it was speech of public concern directed to the public.

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

This is an interesting question, but it doesn’t apply to this case.  The question would apply if Phelps’s protest disrupted the funeral.  Suppose Snyder were having a funeral procession out in public, and Phelps made his protest there, disrupting Snyder’s event.  We would then have Snyder’s First Amendment rights to freedom of religion and assembly (a funeral is often religious and a funeral procession can be understood to be a form of assembly) pitted against Phelps’s First Amendment rights to the speech.  But that isn’t this case, as the funeral was held in private and Phelps was far away.

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

I don’t think this question applies to this case since Snyder’s family wasn’t a captive audience to Phelps’s speech.  In fact, Snyder didn’t even hear or notice Phelps’s speech until after the funeral.  If he were a captive audience, however, then the First Amendment analysis would have to take that into account.

In short, while Phelps’s speech was odious, it was general enough and sufficiently distant from the funeral so as to avoid (1) making specific statements about Snyder and (2) invading or disrupting the funeral.  Accordingly, it deserves First Amendment protection.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages.  The total damages were reduced by [...]]]> The Supreme Court had granted certiorari on Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a First Amendment case involving some privacy law issues.   The Supreme Court seems quite interested in privacy law of late, having recently granted cert. in NASA v. Nelson, a case involving the constitutional right to information privacy.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages.  The total damages were reduced by the court to $5 million.

The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”

Snyder prevailed on at least two tort claims of relevance to privacy law: (1) intentional infliction of emotional distress; and (2) intrusion upon seclusion.

The Fourth Circuit reversed on First Amendment grounds.  Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In this post, I’ll focus on the intrusion upon seclusion tort.  I’m not clear on the basis for the intrusion upon seclusion claim. The tort provides:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts 652B.

Generally, intrusion doesn’t involve speech.  It involves invasive actions — snooping, surveillance, trespassing.

Where was the intrusion in this case?

The protest occurred more than 1000 feet away from the funeral and wasn’t seen by the funeral attendees.  It is not clear that there was any disruption of the funeral.

Had the protesters invaded the funeral or disrupted it with noise, then this might constitute an intrusion upon seclusion.  But speaking about an event, even nearby, isn’t an intrusion unless it somehow invades or disrupts privacy.  The facts supplied in Snyder’s cert. petition point out police resources being used to promote safety at the protest and how a nearby school was affected.  But what is notably missing are facts alleging how the protest invaded the funeral itself.

I would like to know precisely what facts establish the intrusion upon seclusion claim.  Without facts to establish an intrusion upon seclusion, this claim should have been dismissed because the elements of the tort weren’t met.  This isn’t a First Amendment issue — it involves whether the requirements of the tort are met.  Based on the facts I’m aware of, I don’t see a cognizable legal claim for intrusion upon seclusion.

Click here for my analysis of the intentional infliction of emotional distress claim.

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles [...]]]> I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law).  The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010).  It was written as part of a symposium “Prosser’s Privacy at 50.”

By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century.  And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today.  His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.

For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed.  Here’s the abstract of our paper:

This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.

Comments are welcome.

The sports network Versus, owned by Comcast, has been off of DirecTV’s satellite service for three months in a fee battle. More prominently, the Food Network and HGTV disappeared from Cablevision’s lineups in New York and New Jersey on Friday after talks broke down with the owner of the channels, Scripps Networks.

The Food Network costs distributors 8 cents a viewer on average now; Scripps wants a roughly 300 percent raise, according to people briefed on the negotiations. That might seem drastic, but 30 other channels, [...]]]> I’ve been following the debate over ala carte cable TV pricing, and the recent Fox/Time Warner showdown has put it back in the news. Brian Stelter’s NYT article on the topic reveals some interesting revenue figures in the cable industry:

The sports network Versus, owned by Comcast, has been off of DirecTV’s satellite service for three months in a fee battle. More prominently, the Food Network and HGTV disappeared from Cablevision’s lineups in New York and New Jersey on Friday after talks broke down with the owner of the channels, Scripps Networks.

The Food Network costs distributors 8 cents a viewer on average now; Scripps wants a roughly 300 percent raise, according to people briefed on the negotiations. That might seem drastic, but 30 other channels, some with lower ratings, already earn that much. “We were really, really undervalued,” said Brooke Johnson, the president of the Food Network. . . .

[T]he owners of Oprah Winfrey’s cable channel, set to begin one year from now, are hoping that her star power will be worth 50 cents for each subscriber a month. The channel it is replacing, Discovery Health, gets only 12 cents now. Consumers already pay dimes or quarters for most cable channels each month, whether they watch them or not. ESPN earns the most by far, $4.10 on average, and is forecast to receive more than $5 a month by 2012, according to the research firm SNL Kagan. Fox Sports Network gets $2.37 on average.

Many consumer advocates (and the Parents Television Council) have demanded that subscribers get the right to pay only for the channels they want. But Joe Nocera has convincingly worried that ala carte pricing will unravel the whole cable model:

[U]nmoored from the cable bundle, individual networks would have to charge vastly more money per subscriber. Under the current system, in which cable companies like Comcast pay the networks for carriage — and then pass on the cost to their customers — networks get to charge on the basis of everyone who subscribes to cable television, whether they watch the network or not. The system has the effect of generating more money than a network “deserves” based purely on viewership. Networks also get to charge more for advertising than they would if they were not part of the bundle. . . .

According to [one] analysis, if every African-American family in the country subscribed to the Black Entertainment Network, it would still have to raise its fees by 588 percent. He adds, “If just half opted in — still a wildly optimistic scenario — the price would rise by 1,200 percent.”

Ala carte pricing might seriously undermine the diversity of cable offerings. But I do think that the cable companies’ ever-rising rates require some regulatory response. One idea would be to follow the health insurance reform model and limit the amount of profits that the cable companies, as intermediaries, could make. The amount of money health insurance companies actually pay for medical care is called the “medical loss ratio.” It now appears that “both the House . . . and the newly recast Senate [health reform bills] would force insurers to spend the vast majority of premium revenue on medical care for their customers, reducing the amount available for profits, executive salaries, sales and administration.”* Would a content loss ratio make sense for cable companies–that is, requiring them to pay some fixed percentage of revenue for content?

I’m afraid that such a concept probably wouldn’t do much to reduce prices, because content providers are a pretty concentrated industry as well (and, where they’re not, copyright tends to give some level of monopoly power—Lords of the Mafia isn’t much of a substitute for The Sopranos). Likewise, in health care, the power of providers seems to have overmatched efforts by insurers in the 1990s to screw down costs:

One might wonder why consolidation among insurers did not allow them to resist the [medical] providers’ demand for increased payments. The simple answer is that there were two concentrated parts of the market and one fragmented part. The insurers had to choose between fighting a full-pitched battle with the providers or exploiting their own market power vis-à-vis the employers. Raising premiums to employers was a lot easier. In theory, employers could have demanded restrictive networks (at lower prices). But since everyone had agreed that employees did not like restrictive networks, and providers (especially hospitals) were not willing to discount much to get into such networks, there were not many available for purchase. Individual employers could not invent such a product; they could only shop around and find the relatively best deal by customizing other contract terms, such as cost sharing.

I suppose that cable companies, like health insurers, find it much easier to jack up rates for customers than to refuse content providers’ demands for more compensation. (The denoument of the TWC/Murdoch fight is one interesting data point here.) And there’s always the option of merging content and conduit, as Comcast’s proposed purchase of NBC will do. Recombinant conglomerates will no doubt concoct many business models, aided by the M&A kingpins on Wall Street. As Bruce Judson has commented, these “ultimate intermediaries” are now far more richly compensated than the average entrepreneur.

Perhaps the only constraint on these intermediaries’ ability to raise prices will be the decline of the real economy that employs most of their customers. While the ruse of the creative class lures community after community to turn to entertainment, “meds & eds,” and other staples of the weightless economy for growth, Michigan is learning the hard way that soft industries need some hard foundations:

The sputtering Michigan economy is dragging down the state’s once-strong health-care system, offering a preview of how a lingering recession could corrode Americans’ hospitals, savings and health. . . . Years of auto-industry layoffs and benefit cuts to white-collar retirees have left hundreds of thousands of Michigan workers . . . without employer-provided health coverage. . . .

The seven-hospital St. Joseph system lowered its operating margin and projects it will cut $60 million from next year’s budget, about 7% of its revenue. The William Beaumont Hospital system, which traditionally attracted well-insured patients at its hospitals in the affluent suburbs of Grosse Pointe and Royal Oak, reported its first net loss last year.

Admittedly, given the US’s penchant for panem et circenses, it would not be surprising if individuals prioritize the cable bill over health insurance premiums. There are so many compelling stories to watch.

*According to Julie Appleby, “The Senate bill would require insurers to spend at least 80 percent on medical care and quality improvements (85 percent minimum for plans sold to large groups), while the House bill specifies 85 percent.”

X-Posted: Madisonian.

In writing a piece entitled Mainstreaming the Tort of Privacy (forthcoming [...]]]> As New York Times v. Sullivan made clear, defamation has a bigoted past.  There, Montgomery, Alabama’s police commissioner brought a defamation suit against The New York Times after it published an advertisement, “Heed Their Rising Voices,” which suggested law enforcement’s interference with civil rights protests.  Sullivan based his defamation suit on this premise: accusations of racism hurt my reputation in Montgomery, Alabama.  At the time, it was a truly laughable proposition given the racial hatred so prevalent in the white community there.  No matter, Sullivan and others after him tried to use the law of defamation to silence mostly Northern papers writing about Southern bigotry and officially sanctioned violence against civil rights leaders and others.

In writing a piece entitled Mainstreaming the Tort of Privacy (forthcoming Cal. L. Rev.), I stumbled across  Afro-American Publishing v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966), a case that told a Sullivan-esque story but with a privacy twist.  A white drug store owner sued the Washington Afro-American (the “Afro”), a D.C.-based, bi-weekly paper, for invasion of privacy and libel.  The plaintiff sold the Afro in his drugstore, and canceled it because the paper “spread racial hatred and distrust.”  In the October 14, 1961 edition of the Afro, the paper covered plaintiff’s cancellation of the Afro, noting that plaintiff had told Afro’s editor that his black customers had a “low level of intelligence” and were ignorant.  Plaintiff prevailed at trial on the privacy and libel claims.

The D.C. Circuit, writing en banc, recognized the common law right to privacy in the District of Columbia based on the Warren and Brandeis formulation of a person’s “right of private personality,” the “right to be let alone.”  The court noted that much like in 1890 when Warren and Brandeis wrote The Right to Privacy, the “communications explosion” and “mechanical and electronic devices for snooping” of the 1960s imperiled privacy.  Although the D.C. Circuit noted that the right of privacy stands on “high ground, cognate to the values and concerns protected by constitutional guarantees,” it is not absolute and must permit the press to publish discussions vital to democracy.  As the court held, “[w]hen a proprietor of a news vending outlet in a predominantly Negro neighborhood discontinues the handling of a newspaper oriented to Negro readers, the matter is appropriate for newspaper discussion . . . without fear of an overhanging action for invasion of privacy.”

This case reminds us that just as batterers invoked the mantle of privacy to hide domestic violence, some used the tort of privacy to silence media attention to bigotry.  (There are no doubt better cases for the point, but I use this one just because I found it seredipitiously).  This case brings to mind Lior Strahelivitz’s important work in Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Northwestern L. Rev. 1667 (2008), where he explores how information privacy protections can undermine antidiscrimination law and how government can in certain circumstances reduce the prevalence of unlawful discrimination by publicizing previously private information about individuals.  A fascinating read on the promise of sunlight.

Consider the Times Publishing Company’s sale of Governing magazine, which reports on state and local governments, to e.Republic, whose founder and top executives are Scientologists.  e.Republic’s founder Dennis McKenna has practiced Scientology for over 30 years and was identified as a church spokesman in 1979.  The Times Publishing Company still owns The St. Petersburg Times, which has long investigated [...]]]> Much like everything else in our debt-ridden economy, the media has hit hard times.  Papers have folded, fired staff, or been sold.  This leaves news markets with fewer papers and less investigative reporting.  Amidst this glum report comes another trend worth discussing.  As the mainstream media centralizes its overall presence in a few organizations, some papers left standing have been acquired by organizations with strong religious affiliations.

Consider the Times Publishing Company’s sale of Governing magazine, which reports on state and local governments, to e.Republic, whose founder and top executives are Scientologists.  e.Republic’s founder Dennis McKenna has practiced Scientology for over 30 years and was identified as a church spokesman in 1979.  The Times Publishing Company still owns The St. Petersburg Times, which has long investigated and criticized the Church of Scientology.  In the last several months, The St. Petersburg Times has run a series of scathing articles on the Church of Scientology under the title “The Truth Rundown.”  (In 1980, that newspaper won a Pulitzer Prize for an investigation of the church’s inner workings).

Governing staffers worry that their new management’s religious practices may affect their jobs.  According to The New York Times, their anxiety stems from  2001 article in the Sacramento News and Review reporting that e.Republic’s staff members were required to read a book on management called “Speaking from Experience,” written by L. Ron Hubbard, the founder of Scientology.  e.Republic’s Chief Operating Officer has said, however, that in his 13 years at the company, he had never read Mr. Hubbard’s book.  Some of the staffers’ concerns might be alleviated by the fact that e.Republic has long published Government Technology (GT) magazine, one of my favorite sources for my work on government’s use of information technologies, with no sign that the owner’s religion has had an impact on the stories that GT publishes.  But no matter, this trend is worth watching as newspapers continue their downward spiral.

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