When intimate privacy is violated, self- and relational development is impaired to the detriment of individuals and society. Despite these costs, there is a lack of systematic empirical and theoretical study of intimate privacy and efforts to protect it. This research helps fill this void through two complementary studies. Through a longitudinal experimental design, results from Study 1 highlight that partner trust and response-efficacy were not only positively predictive of online intimate disclosure, but also strengthened following knowledge of intimate privacy protections. In Study 2, we find individuals are more likely to engage in public-facing online sexual expression if the platform-as opposed to the government-is responsible for intimate privacy policy. This article underscores the value of empirical methods to the law and provides implications for policymakers and platform designers seeking to heighten intimate privacy protections.
In 2020 a "little Facebook spat" ended in a conviction for intentional libel in the Bahamas. This article explores the Court's decision in Archer v. Commissioner of Police, holding that criminal defamation is not an unconstitutional way to protect reputations of persons in the Bahamas. The decision aligns with the earlier decision of the Privy Council in the Grenada case of Worme v. Commissioner of Police. These former British colonies share a final court of appeal, small populations, and similar protections for free expression, with exemptions for libel, and the cases involved identical statutory statements criminalizing libel. The Archer decision occurs against a backdrop of discussions in the Caribbean about the constitutionality of criminal libel laws. The author suggests that where leveraged by the powerful to prevent dissent, criminal defamation laws are despicable, but they may be a legitimate means for private victims to be vindicated when hurt by defamatory statements.
The video taken by an onlooker of George Floyd's death at the knee of Minneapolis police officer Derek Chauvin in 2020 went viral on social media and was likely instrumental in Chauvin's conviction during the murder trial. Despite the obvious value of the public's ability to video-record police activity in this case, and others, the U.S. Supreme Court has yet to directly address video-recording police as a First Amendment right. Although many of the federal appellate courts have said there is some First Amendment protection to record police, there is a lack of clarity about what would constitute reasonable time, place, and manner restrictions. Should peacefully recording an arrest or other police activity in a public space that does not interfere with an officer's duties be subject to any limitation? This analysis addresses this question through the critical lens of cultural legal studies and incorporates elements of traditional jurisprudential analysis and political economic critique. This study shows several legal inconsistencies in the protection of free expression and public safety when civilians video-record police, and it argues that federal and state courts, along with legislatures, should recognize the public value of video-recording police in public spaces.
News literacy is a topic of increasing attention from scholars and policymakers, particularly as disinformation and misinformation proliferate in the communication technology space. In this article we focus on both justifications and messages for news literacy from an international human rights law perspective. Several existing norms provide foundation for what can be called an international human right to news literacy. This right is inherent in the educational guarantees of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Further, if the right to freedom of expression in the International Covenant on Civil and Political Rights (ICCPR) is to be fulfilled, news literacy must be part of a state party's effort. The right to justice in the United Nations Sustainable Development Goals includes a guarantee of accountable institutions with informed citizen oversight. Finally, an authoritative interpretation of the Convention on the Rights of the Child (CRC) explicitly requires digital literacy education for minors. The legal context of news merits further development in news literacy scholarship. This article contributes to that effort by discussing the international human rights law foundations of news literacy and then arguing that news literacy education must account for a growing divide between the marketplace of ideas and the anti-marketplace of ideas. Drawing on the economic history research of Fernand Braudel, we contend the anti-marketplace is a zone of speech capitalism embodied by large social media platforms. While the users of these platforms may be engaging in protected freedom of expression in the marketplace of ideas, the platforms themselves largely operate in the anti-marketplace. The actions of platforms in the anti-marketplace are not primarily expressive and lack the social and individual values contributions that would justify expansive and strong protections afforded by free-press and free-speech legal guarantees. This reality has significant ramifications for the legal context surrounding news and is critical for news-literate citizens to understand. The failure of the U.S. Supreme Court to make the distinction between the marketplace and the anti-marketplace in the context of social media is explored here as a suggested case study to be included in news literacy curricula.
Last term, the Supreme Court overturned the longstanding Chevron doctrine in Loper Bright Enterprises v. Raimondo. This decision follows other recent Court decisions (e.g., West Virginia v. Environmental Protection Agency) that have weakened federal agencies' regulatory authority. This article examines how the elimination of the Chevron doctrine will impact the Federal Communications Commission (FCC), and what level of judicial deference the agency can expect moving forward. The article argues that while the FCC is often successful in cases heard before the Court, its lower track record of success before the lower courts and current deregulatory environment suggest that the FCC will face a reduction of rulemaking and interpretation powers, and will need to stick closer to the statutory laws governing the agency.
Smart devices can record user data that companies share and process for secondary purposes. Collecting and processing such data can harm privacy, yet only five state legislatures in the United States had active comprehensive data protection laws to shield such privacy interests by May 2024. This article identifies consumer privacy rights and company responsibilities under comprehensive state data privacy laws. This study also uses an online survey of U.S. smart-device users to assess consumer desires for privacy protection of specific types of information, satisfaction with institutional privacy protection from policymakers and corporations, and general privacy concerns. After comparing consumer perspectives to protections afforded under state comprehensive data-protection laws, this article concludes that consumers have significant privacy concerns that are not addressed by state comprehensive data privacy laws.
This article traces how the press in the United States during the second half of Reconstruction, from 1870 to 1876, debated the merits and drawbacks of defamation law. These debates occurred within diverse newspapers across the country, spurred by Southern papers accusing the Northern press of engaging in defamation against the South. By providing a window into the nuances of journalistic debates over defamation in one of the most tumultuous periods in United States political history, this article reveals how diverse newspapers weighed the benefits of defamation law against their concerns for press freedom. Journalists in both the North and the South recognized the significance of defamation law. They differed, however, in that the Northern press also acknowledged how some journalists in the South might use defamation suits to squash criticism, while the Southern press largely prioritized defending its reputation from Northern critiques. This discourse paralleled mid-twentieth-century debates over press freedom in the advent of the New York Times v. Sullivan decision. The article concludes that the parallels between the 1870s and 1960s provide a new framework to help defend Sullivan against recent critiques from the Supreme Court.
On June 30, 2023, the Supreme Court decided the case 303 Creative LLC et al. v. Elenis et al. The Court ruled in favor of website designer Lorie Smith, who does business as 303 Creative, LLC, which means that Smith is free to actualize her religious convictions and decline to make wedding websites for LGBTQ+ persons. The Court had to decide between the conflicting claims of free-though commercial-expression on the one hand and accommodation for LGBTQ+ people on the other. It held in favor of free expression, but what exactly constitutes "expression" was not made completely clear by the Court. We propose that copyright eligibility can act as a parallel determiner for speech rights, helping the courts decide exactly which expressive businesses may decline to provide certain messages, in the interests of their philosophical or religious beliefs and free expression, and which may not.
This study investigates whether and how gender influences outcomes in fighting-words cases. Fighting words are a category of unprotected speech characterized as personal insults directed at individuals and that are inherently likely to provoke violence. To determine whether courts are less likely to consider disruptive statements aimed at women as fighting words, a strategic content analysis was conducted on a sample of 124 state appellate and supreme court cases. Results indicated that when judges and justices assessed disruptive, insulting speech directed toward women, they classified it as fighting words 33 percent of the time. However, when speech addressed to men was evaluated, it was deemed fighting words 52 percent of the time. This inconsistent application of the fighting-words doctrine, and ultimately the protections of the First Amendment, suggests that women are expected to endure a greater level of verbal abuse than their male counterparts. Recognizing the difficulty of removing implicit bias from the assessment of whether speech is likely to provoke violence, we call on the Supreme Court to either reshape that prong of the fighting-words test or remove it altogether.
As of 2023, there are over 5,000 community radio stations in Brazil. However, obtaining a license for community radio broadcasting can be quite challenging. This study reveals that obtaining a community radio broadcasting license in Brazil is easier with political support, as licenses are typically granted to those backed by politicians. Analyzing protocols showed that applications endorsed by congress members or senators were 2.14 times more likely to get approval. This indicates a need for transparency and fairness in the licensing process, where awards should be merit based, reflecting the community's needs rather than political influence. This will ensure equitable license distribution, benefiting local communities and deepening understanding of Brazil's community radio licensing process.
A Cleveland, Ohio, jury found Samuel H. Sheppard guilty of second-degree murder for the death of his wife in 1954. News media provided pervasive coverage of the trial. In 1966, the U.S. Supreme Court held that Sheppard had not received a fair trial due to a trial judge's failure to protect the defendant from influences from massive prejudicial publicity and "disruptive influences." Recent scholarship has found that the Supreme Court incorrectly described the trial courtroom as bedlam, carnival-like and a Roman holiday for the press. The present research reviewed court records and periodicals from the time of the trial in 1954 and early 1955 when the defense counsel challenged the fairness of the trial. This article has found that contemporaneous records reflected comparisons of the trial atmosphere to a carnival, circus and Roman holiday for the press during the trial, but records did not indicate that bedlam reigned throughout the trial.
Individuals rely on digital communication platforms to express the most intimate details of their lives with others. The screenshot feature threatens the ability to do this with confidence, authorizing nonconsensual information collection and sharing by interpersonal actors. In some instances, the harms enabled by the screenshot feature have incited legal action. This study analyzes how judges and policymakers have conceptualized and regulated screenshot collection and the sharing of private communications. Analysis of case law and Federal Trade Commission (FTC) rulemakings reveal inconsistencies both within law and policy and as compared to evidence from social-media users. Judges have provided broad definitions of "authorization" and lofty thresholds to sustain individual harm, making statutory regulation of screenshot collection and sharing unlikely. However, guidance from the FTC has demonstrated a nuanced approach to privacy that recognizes the significance of platform design. Results suggest that design-based strategies-both ex ante and ex post-would be a promising step toward adjusting the norms around screenshot collection and sharing of digital messages.
This article conducts a historical analysis of newspaper coverage and governmental debates from 1834 to 1837 over whether abolitionists should be restricted from the postal networks in the South. Three thematic categories emerged from my analysis of a controversy over abolitionists using the postal network in 1835: (1) balancing government regulation with free expression in the postal network, (2) concerns about individual postmasters meddling in the network, and (3) support for regulation, bridging postal law reform and ethics. This article contends that the 1835 debate showed the limitations of a libertarian understanding of free expression in the United States. These findings contextualize contemporary debates over reconciling the First Amendment with government regulation of digital networks when fashioning media policies that shape content moderation and free expression on digital platforms.
While scholars provide guidance on the ideal of independence among collegiate news organizations, practitioners in the field recognize major barriers to achieving pure independence from an associated university or college. This article considers legal precedent to determine how the gap between pure college media independence and modern, standard practices of these news organizations create murky lines for courts when determining whether public universities have the right to regulate and control aspects of student media. Using data and transcripts from a 2021 study of college news sustainability, the current work argues that college media are evolving and that U.S. legal precedent does not provide comprehensive protections for student journalists to accommodate the changes happening within this sphere of media. We also describe how the U.S. Supreme Court's current views of the press and New Voices legislation might impact the future of the college media sphere.
This article opens with an analysis of the scope of the protectable legal right to be forgotten, since this must be understood not only in relation to the right to erasure. The right to be forgotten is much more complex, as it needs to cover a wide range of situations. The article proceeds by outlining the main jurisprudential milestones that prefigured the right to be forgotten in the predigital age, considering the Costeja case as a major tipping point. The article goes on to focus on the ambit of the European Union (EU), initially by studying the meaning and impact of the new general data protection regulations that have been in force since May 2018. Subsequently, it analyzes how some EU member states have incorporated this new juridical instrument. Spain, which has updated its legislation in this area in order to fully comply with EU requirements, is a particular focus.
This article considers the regulation of social media usage in Nigeria and Africa, drawing from ideas on critical political economy, securitization, and state-citizen distrust. Using a methodology that combines policy analysis, case studies, and qualitative reading of social media texts, it introduces for the first time the concept of regulatory annexation. This is the extension of standards, principles, and sanctions originally meant for one particular frame of reference to another. I establish the concept by drawing from case studies on broadcast media regulation to show that this is being mapped onto the emerging regulation of social media and Internet content in what I describe as the politics of regulation. I argue that regulatory annexation bears significant implications for the control of the entire media architecture and our understanding of new media regulation in the wider sense, both now and in the future.
The United States is the most influential actor in the Israeli-Palestinian conflict; its intelligence agencies cooperate with Israel on most "counterterrorism" dossiers impacting Palestinians' life, with a significant number thereof pertaining to Internet policing in Gaza and the West Bank. Meanwhile, Israel controls some of the key Internet service providers (ISPs) that serve Palestinians, and it is thus endowed with the capability to compel those ISPs to filter information so as to perform as American propaganda reinforcers. Moreover, the United States may unaccountably assert jurisdiction over data from and to Palestine because American cables are where most of the Internet transits through, exercising surveillance without judicial oversight. Verified instances of censorship directed by government-tied U.S. corporations, especially during confrontational seasons, are indeed numerous. Palestinian authorities themselves contribute to creating information clusters and identity bubbles, with infrastructural deficiencies as well as executive and court orders undermining freedom of expression online under arbitrary "public morals" or "security" concerns. The combined effect of technical advantage and regulatory capture supports the convergence of interests between Palestinian and Israeli authorities in restricting Palestinians' digital rights, and assists the United States in reiterating its "security" hegemony in the region. This warrants a debunking of the limits of the law in constraining private actors and readjusting states' jurisdiction over Internet infrastructure and data packets transiting through it.
This article focuses on a particular aspect of media capture by examining how the Kurdistan Region of Iraq's media regulatory authorities and governmental bureaucracy use both formal and informal instruments and practices at their disposal to regulate press freedom. It reports on the findings of a mixed-methods approach: A qualitative document analysis of media regulations (such as laws, bills, and guidelines) was combined with 20 in-depth semistructured interviews with both state officials involved in media regulatory authorities and journalists, media managers, and editors-in-chief (N = 20). The findings show deliberate shortcomings in the contents of the laws as a result of pressure from the ruling political parties. In addition, they reveal the existence of informal structures and practices to control formal media regulations through patronage relationships and clientelism. We conclude by discussing the implications of these results with regard to the state of the regulatory chaos occurring within an unstable political environment. This includes imprecise laws and the irregular and unpredictable enforcement of media laws that are restricting journalists, to discern the boundary between legal and illegal. As such, the findings provide key insights on the different dimensions of regulatory capture in transitional democracies more broadly.
Originalism explores the intentions for, or understandings of, constitutional rights held by drafters of the Constitution or founders of the United States. This qualitative historical analysis evaluates the accuracy and adequacy of U.S. Supreme Court justices’ citations of founders’ intentions for, or understandings of, free press rights in opinions addressing journalists’ rights to cover and access court proceedings. Our research found that justices some times have accurately and adequately cited founders’ writings. Yet, justices too often have cited court opinions and other documents from the 1800s or 1900s to support their assertions about original intentions for or understandings of freedom of speech or of the press and First Amendment values. When referencing writings by founders, justices sometimes provided inadequate context. Such practices have harmed the accuracy of legal and historical records. To improve accuracy in future opinions, justices need to stop citing sections of previous opinions that lack accurate citation, adequate citation, or proper context.
Several defamation cases stemming from apparently irrational statements are testing the boundaries and standards of defamation law. The constitutional standard for defamation of public figures, actual malice, is based on the speaker’s knowledge that a statement is false or their reckless disregard for whether it is true. An irrational speaker who believes their statement is true confounds this test. This article delineates aspects of defamation law that are challenged by an irrational speaker and concludes with a recommendation to include a stronger “objective” element in the application of the actual malice standard to such cases.
