"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 

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

Free Speech Issues Abound After Capitol Hill Riot

My new South Carolina Press Association column:

The riot at the Capitol building on Jan. 6 and its aftermath have raised several serious concerns about American politics and society. These events also raise several questions and dilemmas regarding First Amendment law and freedom of speech generally.

My Terms of Service Study is Published

My study on whether rewriting web sites' terms of service in "plain English" is effective in making them more understandable to users has been published in the academic journal Social Media + Society. It is available at https://journals.sagepub.com/doi/10.1177/2056305119897321.

Juror Gets 30 Days, Fine for Online Research

A juror in a high-profile criminal trial of five members of a church for beating a gay congregant has been held in contempt and sentenced to 30 days in jail and fined $500 for doing independent research online about (archaic, it turns out) North Carolina law and distributing it to fellow jurors. Besides punishing the juror, the judge also declared a mistrial in the case.

New Guide to U.S. Social Media Law

Late last year I became the new lead contributor and editorial reviewer for the venerable Internet Law: The Complete Guide, published by Specialty Technical Publishers.

Now, STP has released a chapter of the Guide as a stand-alone publication, Internet Law Essentials: U.S. Social Media Law.

Writing and Speaking on Social Media and Courts

I discuss different aspects of social media and the courts in a new article and at an upcoming conference.

Quoted by the AP. And Herman Cain.

I've been quoted by the Associated Press in a story about a bill pending in California that would allows judges to fine jurors who use social media or the internet improperly during trials. And 2012 presidential candidate Herman Cain pulled my quote from the AP for his daily news update (halfway down the page).

New York Bar Association Committee Calls for Jury Instruction Improvements for Digital Age

In my 2011 study of state and federal courts' jury instructions regarding the internet and social media, I observed that New York State's civil and criminal pattern jury instructions were among the most advanced in how they dealt with the issue. Not only do New York's instructions admonish jurors not to use these resources to research or communicate about the cases they are hearing, but the instructions also mention specific sites and warn of the possible consequences if the instruction is disobeyed.

Now the New York State Bar Association's Commercial and Federal Litigation section is calling for updating and strengthening the instructions.

Judge Quits Blogging, Again; But It Still Can Be Done

Federal district court judge Richard G. Kopf has announced that he will stop writing his blog after being criticized for a controversial post: the second time that he was made such an announcement.

Tweeting Penalty Has Bad Character

An Arkansas judge has found the managing editor of a television station in contempt for tweeting the verdict in a murder case, despite explicit instructions from the judge not to do so. But the "punishment" imposed by the judge may create new problems.

Florida Court's New Rule Limits New Media Access

Perhaps taking its cue from the U.S. Supreme Court, which issued press credential rules which limit access by the premier blog covering the court, a judicial district in Florida has issued new rules that essentially bar bloggers and other new media journalists from covering trials in those courts.

My Book Chapter on U.S. Social Media Law

My latest work, a chapter outlining American law regarding social media, has been published in the International Handbook of Social Media Laws (Bloomsbury 2014).

Yes, Bloggers Can Be Covered by Oregon's Shield Law

Back in late 2011, there was much hand-wringing over a decision by a federal judge in Oregon that a blogger could not invoke the state's reporters' shield law in a libel case against her because, in that particular situation, the blogger was not acting as a journalist.

Court Approves Class Notice via E-mail

On the heels of a New York state court approving service in a child support case via Facebook, a federal court in New York has approved the parties' agreement that potential plaintiffs in a class action lawsuit against Gawker Media over intern pay may be served notice of the lawsuit via e-mail. Mark v. Gawker Media LLC, Civil No. 13-4347 (order Nov. 3, 2014).

Small Survey Shows Juror Misconduct Online May Be a Big Problem

In previous posts, I have been skeptical of surveys of judges that have revealed low levels of internet and social media use by jurors. Now a small survey of New Hampshire state judges indicates that it such juror misconduct may be more common.

New Poster Gets Specific On Juror Research, Social Media Use

The National Center for State Courts has released a new poster, "Juror Responsibilities Regarding the Internet and Social Media," that is intended for jury rooms to remind jurors that they should not from research or use social media to discuss cases. But the poster's limited explanation of the reasons behind the restrictions is problematic.

Social Service: New York Court Allows Legal Notice Via Facebook

A  man may serve legal notice on his ex-wife in a child support case via Facebook because other methods have proved fruitless, a New York family court judge has ruled. Noel B. v. Anna Maria A., Docket No. F-00787-13/14B (N.Y. Fam. Ct. Sept. 12, 2014).

While this is not the first time that a court has allowed service of legal notice via Facebook, it differs from other cases in that in this case the court approved the Facebook notice as the primary means of service, rather than a secondary method as in other cases.

Juror's Online Research Leads to Murder Reversal

Research by a juror in a Pennsylvania trial which uncovered the defendant's prior involvement with the law has led a judge to order a new trial in a murder case in which the defendant has been on death row since 2007.

This marks the second known time that a murder conviction has been overturned because of a juror's online research, although in that case the reversal was also based on a juror who fell asleep during the trial. See Erickson Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011).