My new book

 

 My latest publication, a textbook co-authored with Mark Grabowski, has been released by Routledge!

https://www.routledge.com/Cyber-Law-and-Ethics-Regulation-of-the-Connected-World/Grabowski-Robinson/p/book/9780367462604 

Media Law Then and Now: In Recognition of Bill Rogers’ Retirement

For this column, in honor of the retirement of Bill Rogers after 33 years as executive director of the Association, I thought it would be enlightening to look at media law as it existed in South Carolina and nationally when Bill began here, and explore how the law has changed since

https://scpress.org/media-law-then-and-now-in-recognition-of-bill-rogers-retirement/

Government Accessing Electronic Communications to Identify Sources: It Can Happen to You

 

 The revelations that the U.S. Justice Department secretly sought information on reporters’ e-mail, phone and other communications has sent shock waves through media and political circles in Washington, D.C. The Justice Department sought the information directly from communication providers in order to identify the sources of various leaks of government information. It also obtained gag orders barring editors and lawyers at the reporters’ news organizations and the communications providers from informing the reporters that their information was being pursued.

The disclosures led President Biden and Attorney General Merrick Garland to pledge that the federal government would no longer do this, even though both the Trump and Obama administrations also used this technique. But while reporters, editors and publishers both inside and outside of Washington who are concerned about press freedom may view these events with concern, for those beyond the Beltway it likely seems a faraway issue involving high-stakes reporting on national security matters and the like, which isn’t like the local news coverage they do.

But they would be wrong. For there have been numerous instances where local law enforcement have used similar methods to investigate leaks of information with way less apparent importance than national security.

Subpoenas seeking information from the media are not uncommon: the U.S. Press Freedom Tracker counts at least 106 journalists who have been subpoenaed or had their records seized since 2017, and each instance raises serious First Amendment concerns. Many states, including South Carolina, have passed shield laws that limit when courts can issue such subpoenas.

But modern technology offers a work-around alternative to seeking information about sources from reporters: investigators can get the information from reporters’ messaging, e-mail and phone service providers. Under the U.S. Supreme Court’s “third party doctrine,” when a reporter uses a provider to send and receive phone calls, e-mail or other communication, the government can obtain from that provider without confronting any shield laws or privacy issues. After all, the reporter has already “willingly” shared her communications with the provider, so there is no privacy issue. There are other legal loopholes that allow government access in other ways.

Study Shows Increasing U.S. Supreme Court Skepticism of the Press

A new study scheduled to be published in the North Carolina Law Review does show an apparent decline in the U.S. Supreme Court’s view of the press. 

https://scpress.org/study-shows-increasing-u-s-supreme-court-skepticism-of-the-press/

"How Free is Speech on Social Media?," Live on April 22

I'll be speaking on social media and free speech as part of the University of South Carolina's "Live @ the Library" series on Instagram on April 22! Join us!

 https://www.instagram.com/p/CNsGaf6nqZ3/?igshid=ivqmrctkc7y2 

Chauvin Trial Shows Importance of Court Access

There has been a lot of attention focused on the ongoing trial of former police officer Derek Chauvin in the death of George Floyd. Occurring in the context of often-heated discussions of police treatment of minorities, the trial has been shown live on TV and online, and most of the coverage by other media has relied on these live feeds.

This shows that a trial can be covered by cameras without turning into a sensation. And it provides a good example of the reasons why courts should be open to the press and other observers, and that media coverage of the courts can play an important role in showing the functioning of the courts and the basis for legal rulings and verdicts.

https://scpress.org/chauvin-trial-shows-importance-of-court-access/

“The Right to Be Forgotten” Washes Ashore in the U.S.

New column: “The Right to Be Forgotten” Washes Ashore in the U.S.

https://scpress.org/the-right-to-be-forgotten-washes-ashore-in-the-u-s/

We all make mistakes, take foolish actions, and say stupid things. Most of the time, these errors in judgment are ephemeral: we deal with the consequences—or not—and we move on, hopefully a bit more prudent and wiser.

But in the age of the internet, past indiscretions that once would be forgotten now never really go away. But while we may have little sympathy for public officials and public figures whose failings are revealed after they knowingly subject themselves to public scrutiny, in the modern era these online archives contain information on all of us that we may wish to stay in the past.

In 2014, the European Court of Justice gave citizens of European Union countries a partial remedy for this dilemma. Based of the E.U.’s protections of personal privacy—way beyond any such protection in the United States—the court held that individuals could request that search web sites remove “inadequate, irrelevant or no longer relevant” information about them from their search results. This so-called “right to be forgotten” does not remove the underlying information from the web; it only allows for removal of the search result listing, and only upon request of the individual involved. And the search sites are the ones who determine whether the information meets the criteria for delisting.

The delisting only applies on site targeted at E.U. countries. Thus results need only be removed from google.fr, Google’s website for France, but not its American-targeted site, google.com. An effort by France to get the delistings to apply worldwide was rejected by the E.U. court.

There is consensus that implementation of a broad “right to be forgotten” in the United States would run into the First Amendment problems, since search web sites, like other publications, have the right to determine what content they will include and exclude.

But California has adopted a limited “Erasure Law,” which requires web sites and online services to allow minors to “remove or request and obtain removal of content or information” that they previously posted.  And in 2020 a bill in the New Hampshire legislature would have required news media to update, retract, or correct online articles about a criminal proceeding after an acquittal, dismissal, or finding of not guilty, or be liable for damages for not doing so.  There was a similar proposal in New York in 2017.

In January the Boston Globe announced its “Fresh Start” program, which allows individuals to request updating or anonymization of past coverage of them in the newspaper’s online archive. The same month, the Bangor Daily News announced that it would consider requests to remove stories of old crimes (five years for misdemeanors, ten for felonies) by non-public figures from Google search results for its site. (Articles will still appear in searches done on the newspaper’s own site.)

These come after the Cleveland Plain Dealer began a program in 2019 that allows those whose records of minor crimes have been expunged by the courts to remove their names from archived news stories. The paper recently received a grant from Google to research how to automate the process. The Atlanta Journal-Constitution apparently has a similar program.

A Pew study found wide support for such policies, with 74 percent of U.S. adults saying it is more important to be able to “keep things about themselves from being searchable online” than being able to “discover potentially useful information about others.”

Media ethicists have expressed mixed opinions on these programs. And while they do not raise First Amendment questions as long as journalism outlets impose these policies on themselves, they could inspire government officials and legislatures to try to impose them by law, which would create lots of First Amendment concerns.

 

New Administration Means Changes on Press Issues

 My latest SC Press Association column: 

https://scpress.org/new-administration-means-changes-on-press-issues/

New Administration Means Changes on Press Issues

Any change in presidential administrations, especially when it involves a change of party affiliation, means changes in a lot of federal government personnel, stances on issues and policy changes. This is especially true as the Biden Administration takes over from Donald Trump. And many of the changes will likely be in the new administration’s policies and attitudes regarding the press.

The Biden White House has already re-instituted the daily briefing by the White House press secretary, a ritual that dates back to the Herbert Hoover administration in the 1920s that had been all but abandoned during the Trump presidency. While there’s debate on the value of the briefings, they do offer an opportunity for the press to get answers—or, perhaps, evasions—to questions on various issues.

But there are also numerous policy issues that affect the news media—and newspapers in particular—on which the Biden Administration is likely to have different approaches than the Trump presidency did.

Access to Government Information: The Trump administration took extraordinary, unprecedented measures to limit access to information, such as requiring campaign and administration employees to sign legally dubious non-disclosure agreements, and unsuccessfully going to court to enforce them by trying to stop publication of books by ex-administration officials. The President and others in his administration also routinely destroyed documents despite legal mandates that they be preserved. The Trump administration also stopped releasing White House visitor logs, a practice that the Biden White House has already revived.

The Trump Administration denied a record number of requests under the Freedom of Information Act. In a November 2019 speech Attorney General William P. Barr directly criticized the Act, saying that “[the process of government] cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.” This attitude led to policies allowing political appointees to vet agencies’ FOIA responses.

While President Biden has not issued a formal policy on access to government information as quickly as President Obama did (even if his administration failed to live up to it), he has issued a memo pledging “a recommitment to the highest standards of transparency.” And his nominee for attorney general, Merrick Garland, has a judicial record of supporting public access to government information. The Society of Professional Journalists has urged the Biden administration to rescind policies restricting government employees from speaking to the press.

Internet and Social Media: It appears likely that Biden will repeal or at least substantially alter President Trump’s executive order aimed at preventing social media’s alleged censorship of conservative opinion. And the Federal Communications Commission is likely to reinstitute Obama-era “net neutrality” requirements that bar internet access providers from favoring some online content—usually content in which the providers have some economic interest—over others. Without net neutrality rules in place, the accessibility of individual newspapers’ websites and cellphone apps could depend on the specific circumstances in their markets, and their relationships with local internet access providers. Chain-owned newspapers may, for example, be able to afford prioritization from ISPs. And dominant newspapers may have enough customer support so that customers will object if an ISP blocked or limited access, while smaller and independent newspapers may not.

But the big question is what will happen to “section 230,” the federal law that gives social media platforms immunity from most liability for content posted by users. There is bipartisan support for changing the law, albeit for different reasons and in different ways. Perhaps seeing it as inevitable, social media companies such as Facebook have publicly called for change as well.

Anti-trust actions filed against the large social media companies by the Federal Trade Commission during the Trump years, which echo some claims made by traditional media companies, are likely to continue. The social media giants, for their part, are trying to blunt this litigation in several ways, including suggesting—and in the case of News Corp., agreeing on Feb. 17—that they can pay traditional media companies for the display of their news items on social media platforms. Another approach is a bill in Congress that would relax anti-trust laws to allow news media to negotiate a collective agreement for such payments.

Media Ownership: The FCC’s efforts to loosen limitations on media ownership have been tied up in court, and on January 19 the U.S. Supreme Court heard argument on the repeal of the rule barring common ownership of newspapers and television stations in the same market. That rule was created for a different era, when newspapers and broadcast media were dominant and did not face competition from online organizations. Allowing them to unite could end up strengthening them both.

Libel: Through his campaign and presidency, Trump would regularly bemoan American libel law, which he claimed allowed the media to “write purposefully negative and horrible and false articles” without real consequence, and said that these laws should be changed. But the president has little power over such laws, which are established by the states and the courts, and nothing actually changed. Supreme Court Justice Clarence Thomas did in 2019 call for a rethinking of the New York Times v. Sullivan precedent, but doing so would require an appropriate case coming to the Court and a majority of justices agreeing to change the law. Still, many media lawyers worry about what may happen if the “right” case were to make it to the Supreme Court.

Online Privacy: As California’s sweeping new privacy law and regulations go into effect, and other states enact their own laws, there is growing sentiment that Congress should act to establish a national standard of privacy protections for the collection, storage and sale of personal data. These laws could have profound effects on how your website and mobile apps work, and the notices you must give to users.

But perhaps the most fundamental change will likely be in the new administration’s attitude towards the press. Trump, of course, reveled in labelling the press as “the enemy of the people,” which had domestic and international consequences. So far, the Biden administration has treated the press with wary respect, and the honeymoon between the new administration and the press will eventually end. But the end of Trump administration will end an enmity towards the press that had implications way beyond the White House grounds. The question is whether the press and the White House can reestablish the healthy tension between their roles that recognizes the importance of the press in democratic governance.

 

Coming in July: My Next Book!

My next book, an undergraduate textbook written with Mark Grabowski, Associate Professor of Communications at Adelphi University, will be available in mid-July. Cyber Law & Ethics: Regulation of the Connected World, published by Routledge, is now available for pre-order.

https://www.routledge.com/Cyber-Law-and-Ethics-Regulation-of-the-Connected-World/Grabowski-Robinson/p/book/9780367462604