'Horace and Pete' captures American moment

In our fast-paced platinum age of TV, a show foregone is too often vanished in the void, maybe a gem to be unearthed by a future socio-archaeologist, maybe a treasure committed to eternity.  Subsisting with this embarrassing extravagance, I watch as much TV as humanly possible.  Last week, I wrestled a prize from the gravity of evanescence.

The Harvey Weinstein allegations splashed across the internet in 2017.  "Me Too" got a hashtag, and so many of our screen stars were plucked from reverence that it wasn't easy to keep track of who was on the outs and whom we still could watch.  Relative qualitative assessment of sin was not a lawful plea.  Hollywood was blanched in black and white, and the implicated were expeditiously expatriated.  Here, certainly, I'm not meaning to diminish #MeToo, nor to opine on the merits of any accused, but only to observe the outcome.

Comedian Louis CK was out.  He already had been grist for the rumor mill, and then ugly accusations surfaced.  King Louis was deposed before the curtain closed on 2017.  He had not been a favorite of mine anyway, so, to be honest, I barely noticed.

Edie Falco in 2009

(Photo by David Shankbone CC BY 3.0)

So there were a lot of reasons why I, and a lot of people, missed Horace and Pete (short trailer below, from Hulu via YouTube).  CK created, wrote, directed, and starred in the series in 2016.  It was a 10-episode television drama, sort of.  Really it was an experimental web series.  It was experimental in how it was made, a budget crowd-sourcing operation that filmed, episode to episode, only as funding goals were reached.  CK sought both to pioneer a democratic model for making online TV and, with full transparency, to publish the model so that others could do it, too.  That business model didn't work out.  But A for aspiration.

The show also was experimental for what it was: a TV show, on a set, yes.  But through scene structure, stage direction, blocking, cuts (or lack thereof), and especially dialog, the show exudes the intimacy of a live stage play, and every viewer has the best seats.  Sometimes the actors make mistakes, let slip a sly smile, or trip over a line, but the camera carries on.  Longer episodes even have an "Intermission"—the word burns for a minute, white type on a black screen, suggesting that sets and costumes are changing behind the electronic curtain.  One is given the impression that crowd-sourcing doesn't swell the budget for endless takes and post-production wizardry.  The ultimate effect is to make the viewer feel like an insider in the conceit of the art.

And art it is.  CK stars as the eponymous Horace, owner of a rundown Brooklyn bar, Horace and Pete's, and its apartment above.  The bar survived the 20th century as the inheritance of generations of Horaces and Petes.  Now, a hundred years on, the bar, and the family, might have entered their coda.  The script bears ample evidence of CK's signature wit, droll style, and sardonic frown.  But the story is thoroughly a tragedy.  In the distinctively American tradition of Death of a Salesman, Horace and Pete is unrelenting with its occasions for despair, and yet, somehow, manages to illuminate the silver linings of family, loyalty, and love.

Alan Alda

(Photo by UT Moody College of Communication CC BY-SA 2.0)

CK the star might be the least compelling actor of the principal cast, and that seems to be exactly his plan.  The show is sumptuously star studded, and CK wrote for himself a central yet characteristically subdued role that serves to intensify others' shine.  As Horace's sister, Sylvia, Edie Falco does her most moving work since The Sopranos.  As present-generation Pete, the abundantly accomplished Steve Buscemi has done nothing else quite like this to date.

As the elder "Uncle Pete," the incomparable Alan Alda turns in a career-capstone performance, the omega to the broken-protagonist alpha of Goodbye, Farewell, and Amen, 33 years before.  Jessica Lange brings elegance to the dispirited surviving love interest of an elder Horace, and Aidy Bryant is incandescent as the aggravatingly unforgiving estranged daughter of CK's Horace.

The cast is rounded out with a stunning breadth of stand-up talents, often offering edgy and well-tuned comic relief, who take turns as bar flies.  The list is too long to give it its due, a who's who of contemporary American comedy.  So I'll mention only my favorites: Steven Wright and Kurt Metzger banter throughout the series.  Amy Sedaris, Michelle Wolf, and Colin Quinn get an episode each.  And there are cameos, too.  Mayor Bill de Blasio drops in the bar as himself, and magician David Blaine tries to trade a trick for a drink.

CK with a Peabody in 2013
(Photo by Anders Krusberg
/Peabody Awards CC BY 2.0)

Horace and Pete earned some critical acclaim before it dropped off the radar.  It won a Peabody Award in 2016 "[f]or a truly independent and groundbreaking demonstration of how quality television is expertly done in the new media environment, all the while building upon decades of artistry and craft."  And then there was 2017.

The show might be rising the recommendation ranks at Hulu now because CK spent 2020 at hard labor on the rehabilitation road.  Again, I'm not opining on the appropriate consequences for, or redemption eligibility of, a #MeToo offender.

The fact that I cannot escape is that too many people gave too much and worked too hard on Horace and Pete, and the sum of what they made is too valuable, to write it off.  Label it with whatever disclaimers one must, #MeToo and financial failure.  Amid our transition from broadcast frequencies to the electronic multiverse, Horace and Pete nevertheless represents a pivotal moment in cultural creation and a searing snapshot of the American condition.

What goes around comes around: U.S. election cycle, Capitol riot draw 'banana republic' gibes

Seth Doane has an excellent piece out today (Facebook, YouTube, and embed below) on foreign perspectives on the Capitol riot, insurrection, whatever: rebellion to be named later.  The story mentions the Kenyan headline, "Who's the banana republic now?"  I wish only to add that it's not the first time for such cheekiness, recalling Colombia's Publimetro cover from November 6 (Guardian).  I've no doubt that there are plenty of "s***hole" gibes going on in Africa, too.

Publimetro, Nov. 6, 2020, via Pressreader (Colombia); Nation, Jan. 8, 2021, via Internet Archive (Kenya).

 

"What They See," CBS Sunday Morning, Jan. 10, 2021, via YouTube.

Media law journal covers social media and fair trial, mugshot privacy, 'true threat,' China's FOIA, more

The latest edition of the Journal of Media Law & Ethics (8:2, Fall/Winter 2020) spans a range of fascinating issues.  Here is the table of contents from editor Eric Easton and publisher University of Baltimore Law School.

Social Media Access, Jury Restraint and the Right to a Fair Trial
Zia Akhtar

To Post or Not To Post: The Ethics of Mugshot Websites
Mark Grabowski

The Trouble with “True Threats”
Eric P. Robinson & Morgan B. Hill

Merely Window Dressing or Substantial Authoritarian Transparency? Twelve Years of Enforcing China’s Version of Freedom of Information Law
Yong Tang

Free Expression or Protected Speech? Looking for the Concept of State Action in News
Christopher Terry, Jonathan Anderson, Sarah Kay Wiley, & Scott Memmel

A description from Dr. Easton:

In the current issue, British lawyer Zia Akhtar takes a hard look at the use of social media by jurors in criminal trials and the accompanying concern that the rights of a defendant may be prejudiced by the practice. The article advocates a legal code that would prohibit juror access to information about a defendant’s previous record.  

Mark Grabowski follows with an examination of so-called “mugshot” websites through the lens of the Society of Professional Journalists’ Code of Ethics. The article concludes that, while mugshot sites are not an inherently unethical journalism practice, many news outlets present mugshots utilizing ethically dubious methods that urgently need to be reformed.

The need for clear standards governing the kinds of communication that can be considered unprotected “true threats” is demonstrated by the analysis of Eric Robinson and Morgan Hill in our third article. The authors point out that, when the Supreme Court had the opportunity to clarify the elusive concept, in Elonis v. United States and three subsequent cases, they failed to resolve the ambiguities of the doctrine, notwithstanding the prevalence of abusive language online.

It may surprise many of readers that freedom of information is alive, if not entirely well, in China. Based on a massive quantitative study, Yong Tang suggests that enforcement of freedom of information law in the PRC seems more forceful than many Western observers would expect, although there is scant evidence that the law has led to more accountability and better governance.

Finally, Christopher Terry and associates point out that the national press has been woefully remiss in explaining why the so-called censorship of right-wing and other voices by social media platforms is not an abridgment of First Amendment rights. While all likely readers of this journal understand the concept of “state action” in the First Amendment context, the media has generally left the public clueless.

I serve on the journal's editorial board.

Communication education makes people better

Preparing for my Trump Litigation Seminar next week, I just re-read the final chapter of James Zirin's Plaintiff in Chief.  Variously attributed, Zirin catalogs the vocabulary of our truth-challenged culture, discussing "post-truth" (Oxford Word of the Year 2016), "truth [that] isn't truth," (Rudy Giuliani), "truth decay" (RAND), and "alternative facts" (Kellyanne Conway).  And, of course, who could forget the great Stephen Colbert's groundbreaking "truthiness" (The Wørd, and a real word).  Along with Trevor Noah, I've wondered at the breakdown in distinction between fact and opinion.  More than once, my wife, in slack-jawed witness of the news on TV, has declared the need for media literacy education in our K12 schools (and perhaps, I add, in our senior centers). 

Dr. Sherry Morreale (UCCS)

It turns out that media literacy is just one piece in the puzzle of what might be missing in our society today. Communication Professor Sherwyn P. Morreale has co-authored a series of scholarly articles on Why Communication Education Is Important.  Her third installment, co-authored with Joseph M. Valenzano and Janessa A. Bauer, has just won the 2020 Distinguished Article Award in the Basic Course Division of the National Communication Association (NCA).  The abstract speaks to the range of life skills that are bolstered by communication education (my highlighting).

The results of this study argue that communication, and specifically oral communication education, is critical to students’ future personal and professional success. Similar to two earlier studies, thematic analysis of 679 documents in academic and popular press publications, published from 2008 to 2015, provide support for the centrality of the communication discipline’s content and pedagogy. These results reinforce the importance of communication to enhancing organizational processes and organizational life; promoting health communication; enriching the educational enterprise; understanding crisis, safety, risk, and security; improving interpersonal communication and relationships; influencing diplomacy and government relations; being a responsible participant in the world, socially and culturally; developing as a whole person; and succeeding as an individual in one’s career and in business. The kinds of communication addressed as important in each of these nine general themes are outlined, and the results are compared with those in the first two iterations of the study.

This conclusion might seem self-evident to the academic outsider (technical term, "real people") but it readily escapes the grasp of the bean counters who run today's STEM-obsessed universities, where faculty in the social sciences (law included) are tormented with demands that their departments generate revenue to justify their existence.  Because that's why we educate people, for the money.

The current study is titled, Why communication education is important: a third study on the centrality of the discipline’s content and pedagogy, and appears at 66:4 J. Communication Educ. 402 (2017).  Dr. Morreale previously published, with co-author Judy C. Pearson, Why Communication Education is Important: The Centrality of the Discipline in the 21st Century, 57:2 J. Communication Educ. 224 (2008); and, with co-authors Pearson and Michael M. Osborn, Why communication is important: A rationale for the centrality of the study of communication, 29:1 J. Ass'n Communication Admin. 1 (2000).

Full disclosure: Dr. Morreale is my aunt.  She always was the cool aunt.  So her parents are probably to blame for my academic nature, and she, in part, for the nurture.

Corcos probes symbiosis of law and pop culture

My colleague at Louisiana State University Christine Corcos has published "Three Ways of Looking at Law and Popular Culture," appearing in Propriete Intellectuelle et Pop Culture: Nouveaux enjeux, nouveaux defis (IRPI 2020) (conference proceedings) (Amazon France).  The full work is not available online at present, but, meanwhile, the abstract from SSRN is a worthy lesson in itself:

In 1989 the Stanford University Law School professor Lawrence Friedman offered a definition of “popular legal culture.” In an often-cited article, he wrote that, “In the first place, legal culture acts as an intervening variable, a mechanism for transforming norms of popular culture into legal dress and shape. In the second place, legal and popular culture, as images of each other, help explicate and illuminate their respective contents”. He notes that law and culture interact in two ways. Law is outward-looking; it depends on and interacts with the society from which it springs. At the same time it shapes that society. We can and do also talk about at least two current and differing uses of law and popular culture in legal education. We can use law and popular culture to teach legal principles. This use makes legal doctrine entertaining and accessible. We can also dig for the messages it gives us about the interaction of law and society. This second method requires us to interact with the texts of both law and popular culture.

Currently in legal education we can and do examine at law and popular culture in both of the ways Friedman identifies. I suggest that we can identify and should examine a third intersection of law and popular culture that scholars have begun to study, that I suggest we should formally acknowledge as a part of law and popular culture studies. This third intersection is the actual trans-formative effect or trans-formative turn that popular culture and law have on each other. I would suggest both that certain types of intellectual property studies and certain types of activity fall into this category. One example is law’s response to the creation of fan fiction and of fan use of copyrighted and trademarked materials that force a response from the rights holders, or force fans to cease a particular activity because the rights holders refuse permission to proceed. We have many examples of the legal responses and changes in norms that illustrate these interactions. What we don’t yet seem to have in the general theory of law and pop culture is a definition for this third intersection. It may be that this third intersection is now most obvious in intellectual property law, perhaps because of the accessibility and spread of technology as well as the overwhelming importance of social media in our lives today. It exists in other a

reas of law as well, for example in family law, in criminal law, in privacy law, and has for some time. I would suggest that this intersection creates the possibility for the working out of the tensions between law and culture, as the public through pop culture identifies how the law works, what the law is, and then reacts to the law, makes demands on the law, and in some cases, forces changes in the law.

Professor Corcos has been my role model for teaching law with popular culture since we met 20 years ago.  Recently she published, as editor and contributor, The Media Method: Teaching Law with Popular Culture (Carolina Academic Press 2019) (Amazon), to which I was fortunate to be able to contribute a chapter on 1L Torts (abstract).

First Amendment right of access to court records is alive and kicking in electronic era

Developments in the First Amendment right of access to court records were on the menu this afternoon for a continuing legal education program from the American Bar Association (ABA).

The First Amendment protects "the freedom of speech, or of the press," and the U.S. Supreme Court in most contexts has rejected the First Amendment as carving out an affirmative access doctrine.  Yet access to court proceedings and records is an exceptional and narrow area of First Amendment law that grew out of criminal defendants' trial rights in the 1970s and 1980s.  (Co-authors and I wrote about the First Amendment and related common law right of access to court records in the early days of electronic court record access policy.)

Lately there has been some litigation pushing to clarify, if not expand, the First Amendment right of access to court records.  Specifically, courts in two federal jurisdictions, the U.S. Court of Appeals for the Ninth Circuit and the U.S. District Court for the Eastern District of Virginia, have recognized a right of timely access to newly filed trial court complaints.

The public access problem arose as a corollary to the economic exigency that has constrained contemporary journalism.  When I graduated from journalism school, and triceratops roamed the earth, a good journalist on the court beat checked the dockets at the clerk's office at the end of every day.  But the luxury of one journalist-one beat is long a thing of the past, and now it's harder for the working journalist to keep close tabs on new developments at the courthouse.  In this atmosphere, some state court clerks—most definitely not all, our presenters hastened to clarify—took to withholding newly filed complaints from the public record, whether while pending for "processing," or, one might speculate, to deter coverage of sensitive subject matter long enough for news editors to lose interest.

Courthouse News Service (CNS) is a national media entity reporting on civil litigation in state and federal courts.  I reference CNS often myself, here on the blog and in teaching and research, especially for pretrial court coverage, which is hard to come by in the United States.  CNS pushed back against the delayed release of pleadings, suing successfully in civil rights under the principal federal civil rights statute, 42 U.S.C. § 1983.  CNS had to beat abstention in both jurisdictions, which it did, after a first appeal and remand in the Ninth Circuit.

Relying on the range of federal precedents supporting the principle that "access delayed is access denied," CNS substantially prevailed upon its second go in federal trial court in California.  That case was called Planet, and CNS also won on appeal in, and remand from, the Ninth Circuit in a case called Yamasaki.  Remarkably, the third CNS case, in federal court in Virginia, featured full-on discovery, experts, and motions practice on its way to a four-day bench trial and CNS win.  Questions of fact arose from the clerks' purported necessity for delay while pleadings were "processed."  The court in Virginia declined formally to follow Planet, favoring a tougher articulation of the requisite First Amendment scrutiny.

The take-away from all of the cases is that the First Amendment does attach to newly filed pleadings, under the Press-Enterprise II "experience and logic test"; that timely ("contemporaneous," which doesn't mean instant) access matters from a First Amendment perspective; and that delays in access must survive heightened constitutional scrutiny.

These are the access-to-pleadings cases that the ABA presenters discussed:

• Courthouse News Serv. v. Planet, 947 F.3d 581 (9th Cir. Jan. 17, 2020) (“Planet III”), aff'g in part & vacating in part Courthouse News Serv. v. Planet, 44 Media L. Rep. 2261, 2016 WL 4157210 (C.D. Cal. May 26, 2016).
• Courthouse News Serv. v. Yamasaki, 950 F.3d 640 (9th Cir. Feb. 24, 2020), remanding, for further proceedings consistent with Planet III, Courthouse News Serv. v. Yamasaki, 312 F. Supp. 3d (C.D. Cal. May 9, 2018).
• Courthouse News Serv. v. Schaefer, ___ F. Supp. 3d ___, 2020 WL 863516 (E.D. Va. Feb. 21) (dkt. no. 102), appeal filed, No. 20-1386 (4th Cir. Apr. 2, 2020).

CLE presenters also discussed record access in the following cases.  I've added links to cases in trial court dispositions.

• Brown v. Maxwell, 929 F.3d 41 (2d Cir 2019) (remanding for in camera document review in journalist bid to access records in case of sexual abuse victim's allegations against late financier Jeffrey Epstein).
• In re New York Times, 799 Fed. Appx. 62 (2d Cir. 2020) (affirming in part and vacating in part sealing of two parts of transcript of guilty plea hearing in Foreign Corrupt Practices Act prosecution of former Goldman Sachs employee Timothy Leissner).
• Mirlis v. Greer, 952 F.3d 51 (2d Cir. 2020) (secreting video depositions of non-party witnesses, their privacy interests overcoming access presumption, upon access bid by online blogger in case by former student at orthodox Jewish school against the school and principal, alleging the principal sexually molested him while he was a student).
• Trump v. Deutshce Bank AG, 940 F.3d 146 (2d Cir. 2019) (denying access to taxpayer names as not "judicial documents," upon news organizations' motions to intervene and unseal unredacted letter filed by bank in appeal, in order to learn the redacted names of taxpayers whose income tax returns were in bank's possession, in case of bank resistance to subpoenas in House investigation of President's tax returns).
• King & Spalding, LLP v. U.S. Dep’t of Health and Hum. Servs., No. 1:16-CV-01616, 2020 WL 1695081 (Apr. 7, 2020) (denying seal, but allowing withdrawal, of information about attorney fees filed with motion, rejecting firm's claim of need to protect competitive information).
• United States v. Avenatti, No. 1:19-CR-00373, 2020 WL 70952 (S.D.N.Y. Jan. 6, 2020) (denying motion, filed by Government, defendant, and subpoena target, to seal records related to subpoena duces tecum issued on behalf of defendant on non-party in criminal proceeding).
• VR Optics, LLC v. Peloton Interactive, Inc., No. 1:16-CV-06392, 2020 WL 1644204, at *10 (S.D.N.Y. Apr. 2, 2020) (dkt. no. 308, at 17-20) (denying, as moot, motions by both parties to seal trial court records in patent dispute).
• Motion to Intervene and Unseal, Dawson v. Merck & Co., No. 1:12-cv-01876 (E.D.N.Y. filed Sept. 12, 2019, dkt. no. 121) (decision pending) (seeking unsealing and removal of redactions in court records in settled multi-district product liability litigation over alleged side effects of prescription drug, "Propecia," upon motion of news agency Reuters).

One indicator I found encouraging from an access advocate's perspective is the incidence of court rulings in favor of access even when both parties want to seal.

The ABA program was sponsored by the Forum on Communications Law.  The presenters were:

• Heather Goldman, Bryan Cave Leighton Paisner, Washington, D.C.,
• Rachel Matteo-Boehm, Bryan Cave Leighton Paisner, San Francisco,
• Christine Walz, Holland & Knight, New York, and
• Michael Grygiel, GreenbergTraurig, New York.

Radiolab ponders journalists who would undo what they wrought

Radiolab tackled the "right to be forgotten," U.S. style, back in August, and I missed it.  Hat tip at On the Media, which just revived the excellent segment.  Here is the summary and audio.

In an online world, that story about you lives forever. The tipsy photograph of you at the college football game? It’s up there. That news article about the political rally you were marching at? It’s up there. A DUI? That’s there, too. But what if ... it wasn’t.

In Cleveland, Ohio, a group of journalists are trying out an experiment that has the potential to turn things upside down: they are unpublishing content they’ve already published. Photographs, names, entire articles. Every month or so, they get together to decide what content stays, and what content goes. On today’s episode, reporter Molly Webster goes inside the room where the decisions are being made, listening case-by-case as editors decide who, or what, gets to be deleted. It’s a story about time and memory; mistakes and second chances; and society as we know it.

This episode was reported by Molly Webster, and produced by Molly Webster and Bethel Habte.

Antitrust regulators need to up their game to meet challenges of media convergence, Argentine researchers write in UNESCO paper

Published by UNESCO, a new policy paper from Argentine researchers Martín Becerra and Guillermo Mastrini warns that antitrust regulation must adapt to the convergence of media, telecommunication, and internet to remain effective and preserve people's rights.

Prof. Mastrini

Becerra is a researcher with the National Scientific and Technical Research Council (CONICET), an Argentine government agency, and holds academic appointments at the National University of Quilmes (UNQ) and the University of Buenos Aires (UBA).  Mastrini also serves on the UBA faculty.

The researchers reach the counter-intuitive conclusion that the internet's accessibility to new market entrants, and the ease with which new communication technology should facilitate the balkanization of media services, ironically has worked to concentrate property, revenue, and audience globally.  Thus the role of the regulator is more important than ever, while anachronistic regulatory approaches remain siloed in sectors of disparate expertise.

Prof. Becerra

Becerra and Mastrini rather articulate a "relevant market" approach to organize regulatory authority.  At the same time, they eschew a one-size-fits-all approach to the different problems presented by different entities, namely internet "giants," telecommunication conglomerates, and media companies.  Moreover, the researchers stress that values of access to culture, freedom of expression, and pluralism should be baked into the regulatory framework.

The report is La convergencia de medios, telecomunicaciones e internet en la perspectiva de la competencia: Hacia un enfoque multicomprensivo (my translation: The Convergence of Media, Telecommunication, and Internet from the Perspective of Competition: Toward a Multiple-Understanding Approach) and is published by UNESCO as no. 13 in the series, Discussion Notebooks on Communication and Information, ISSN no. 2301-1424 (2019).  The report is in Spanish and includes an executive summary in translation.  HT @ Observacom.

Here is the executive summary:

The converging qualities of information and communication technologies challenge classic regulatory frameworks when regulating audiovisual media activities, on the one hand, and telecommunications, on the other. The digitalization of communications causes a metamorphosis in the definitions of what each sector encompasses and the emergence of actors that provide products and services and develop businesses in convergent markets simultaneously and in increasingly vast geographical areas.

Regulatory approaches that sought to protect freedom of expression in the media, guarantee access to cultural and informational resources and sustain economic competition to avoid distortion of markets today are being reviewed in light of the new reality of progressive integration and of the growing crosscutting elements within the media, telecommunications and Internet ecosystem. In fact, there are limitations that prevent responding effectively and consistently to the problems raised with the consolidation of the digital revolution.

This policy paper provides analytical tools based on comparative law and inquires about antitrust policies and their relationship with the objective of having diverse and pluralistic communication systems that stimulate public debate in democratic societies. Therefore, it has a multi-understanding approach, since one of its objectives is to facilitate the dialogue of areas that until now have had fields of study, normative translations and institutional expressions separated from each other.

After consulting Latin American regulators in the area of defense of competition, specialists in the region in the field and presenting an updated state of the art of the debate about the relevance of economic competition approaches to seek clear answers for the new problems of a convergent environment in communications, the document makes recommendations with the aim of improving the design of public policies both in the field of information and communication services, and in those that serve economic competition, harmonizing fields and disciplines that were not conceived in an articulated way.

In this context, the policy paper is proposed as an input for public policies and a contribution to optimize the understanding of current phenomena with deep repercussions in the culture, information and communication of societies and individuals.

En español:

Las cualidades convergentes de las tecnologías de información y comunicación desafían los encuadres normativos clásicos a la hora de regular las actividades de medios audiovisuales,  por  un  lado,  y  las  de  telecomunicaciones,  por  otro  lado.  La  digitalización de las comunicaciones provoca una metamorfosis en las propias definiciones de lo que cada sector abarcaba y el surgimiento de actores que proveen productos y servicios y desarrollan negocios en los mercados convergentes de modo simultáneo y en ámbitos geográficos cada vez más vastos.

Los enfoques regulatorios que buscaron como objetivos proteger la libertad de expresión en los medios de comunicación, garantizar el acceso a los recursos culturales e informacionales y sostener la competencia económica para evitar la distorsión de los mercados hoy están siendo revisados a la luz de la nueva realidad de la progresiva integración y de los cruces cada vez mayores dentro del ecosistema de medios, telecomunicaciones  e  Internet.  En  efecto,  hay  limitaciones  que  impiden  responder  de manera eficaz y consistente los problemas suscitados con la consolidación de la revolución digital.

El presente policy paper provee herramientas de análisis basadas en el derecho comparado e indaga sobre las políticas antitrust y su relación con el objetivo de contar con sistemas de comunicación diversos y plurales que estimulen el debate público en sociedades democráticas. Por ello es multicomprensivo, dado que uno de sus objetivos es facilitar el diálogo de áreas que hasta el presente han tenido campos de estudio, traducciones normativas y expresiones institucionales separadas entre sí.

Tras consultar a reguladores latinoamericanos del área de defensa de la competencia, a especialistas de la región en la materia y exponer un actualizado estado del arte del debate académico y de divulgación acerca de la pertinencia de los enfoques de competencia económica para satisfacer con respuestas claras los nuevos problemas propios  de  un  entorno  convergente  en  las  comunicaciones,  el  documento  formula  recomendaciones con el objetivo de mejorar el diseño de las políticas públicas tanto en el campo de los servicios de información y comunicación, como en el de las que atienden  a  la  competencia  económica,  armonizando  campos  y  disciplinas  que  no  fueron concebidos de modo articulado.

En este sentido, el policy paper se propone como un insumo de políticas públicas y una contribución para optimizar la comprensión de fenómenos actuales con hondas repercusiones en la cultura, la información y la comunicación de las sociedades y las personas.

'The Media Method': Pop culture-oriented teaching book hits shelves (discount code for 2019 buyers!)

The Media Method: Teaching Law With Popular Culture has hit the shelf at Carolina Academic Press.  I contributed a chapter on pop-culture audiovisuals in 1L Torts to this rich volume conceived, compiled, and edited by pop-culture-in-law maven Christine A. Corcos, the Richard C. Cadwallader Associate Professor of Law at Louisiana State University.  Authors discussed the project recently at the annual meeting of the Southeastern Association of Law Schools (SEALS).  Here is the publisher's description:

Many law professors now teach courses by using examples from popular culture, but there is no comprehensive overview of ways to integrate non-law materials into the legal curriculum. In this text, more than two dozen law professors from the United States, Canada, and Australia demonstrate how to integrate fiction, poetry, comic books, film, television, music, and other media through the first year curriculum traditionally offered in U.S. law schools as well as a number of advanced courses in many subjects. The heavily illustrated book also includes best practices as well as pedagogical justifications for the use of such methods.

The front-matter online includes the table of contents.  Chapter 10 is my Torts Through the Looking-Glass.  Here is the first paragraph (footnotes omitted).

Students today view the world relative to its representations in digital media.  This digital looking glass, or mirror, of reality incorporates fact and fiction and has itself come to define our popular culture.  Accordingly, today’s students benefit from the examination and analysis of challenging subject matter in the real world relative to its digital imaginings.  Instructors in torts can promote learning by bringing into the classroom popular cultural expressions extracted from the vast audiovisual libraries of the Internet.  These demonstrative exhibits can be used to support problem analysis, to explore policy and theory, to bridge study and practice, and to raise issues in professionalism.  This chapter demonstrates the range of multimedia material available in popular culture today with relevance to torts.  My aim is to encourage instructors to build their own libraries of materials and to enhance student learning by holding up torts to the looking glass.

Use code TEACH19 for 25% off in 2019!

Journalism is dead. Long live journalism.

ournalism is no longer a viable business model, and it’s not coming back.  Journalism is on life support.  And we have to decide what to do.

That seems to be the consensus of the public interest advocates at this year’s RightsCon 2019—the premier global conference on human rights in the digital age, meeting now in Tunisia.  The problem being discussed here is not how to lure readers through pay walls and into subscriptions, but how to harness public investment in lump sums.  Public investment is also known as government subsidy.

I have resisted the idea that independent journalism is not up to the challenges of the information age.  Personally, I was inculcated with the “professional” tradition of journalism by Watergate-era teachers.

atergate journalism was the product of a great evolutionary leap in the early 20th century.  When President Teddy Roosevelt didn’t like what the press printed, he derided journalists as “muckrakers.”  He sued newspapers for reporting corruption, but his fussing only sold more papers.  Muckraking became a badge of honor, and a tradition was born of objective and balanced journalistic revelation of public and corporate corruption, independent of government entanglement.  Modern journalism was animated by the same post-war idealism that birthed the (underrated) League of Nations.  However incidental, the First Amendment’s simultaneous treatment of press and religion bolstered the notion of press-state separation.

In journalism by the late 20th century, we believed we had achieved the end of history, the ultimate model of a Fourth Estate in a liberal democracy.  I wrote an honors thesis on seemingly archaic journalist licensing in Central America.  When I posited to my professors, the Watergate crowd, the devil’s advocacy that maybe journalist licensing has an upside, we shared a good laugh.  Of course it would never work to have government oversight of journalism.  It would be the death of journalism and government accountability in one fell swoop.

In ethics class, we were taught to be wary of any entanglement with the subject of a story, and government is the greatest subject of all.  We grumbled our collective didactic disapproval of the sports reporter who accepted a free ride to the game on the team bus.  White House press credentials were a reality that made us swallow hard, but we took on faith that access to the press room would never be restricted based on content or viewpoint.  The American public wouldn’t abide it.  And hey, the room is only so big.

That was the heyday.  That was when journalism was alive and kicking.  We looked the other way when journalism had a coughing fit of consolidation.  We pretended everything was OK when journalism went 24/7.  We started new programs in j-schools when journalism went online.

Eventually, though, we had to admit that we were in denial.  It wasn’t the end of history.  It was just the end.

Journalism is dying.

dvocates here at RightsCon borrow liberally from the language of socioeconomic development, which in turn generalized upon environmentalism.  Brittan Heller, now a fellow at Harvard, admonished her audience to “stop saying ‘fake news,’” and, instead, to think more broadly about “the entire information ecosystem.”  At a panel organized by Reporters WithoutBorders (RSF, for Paris-based Reporters Sans Frontières), Mira Milosevic expanded on the problem of “news deserts” in various countries, the United States included, where local news already is extinct.  Milosevic is executive director of the Global Forum for Media Development, and she worries about the “lack of sustainability” in journalism.  Consistently with UNESCO policy, this language portrays healthy journalism as an essential condition of human prosperity.  The language of environmentalism meanwhile tends to elevate the crisis in journalism to accordingly catastrophic scale: journalism is to political freedom as a green earth is to biological life.

RSF panel at RightsCon 2019 in Tunis. Including, from left to right: moderator
Elodie Vialle, RSF; Julie Owono, Internet Without Borders; Mira Milosevic.
My photo (CC BY 4.0).

The towel already has been thrown in from Walter Cronkite’s corner.  By RSF’s reckoning, journalism needs “a multi-stakeholder approach.”  If that’s right, then we stand on the brink of another evolutionary leap.  Though maybe the evolution metaphor peters out if, like me, you’re not convinced that change can only be for the better.  The stakeholders that journalism’s rescuers would bring to the table include the public, civic service organizations, and—here’s the kicker—“the ‘good’ forces of government,” as another RightsCon panelist put it.

Milosevic conceded that meaningful government commitment is essential if media watchdogs are going to tackle the populous public affairs machinery of contemporary corporations.  And there’s plenty of corporatocracy to tackle.  A RightsCon workshop moderated by Privacy International's  Francisco Vera, formerly of Derechos Digitales in Chile, discussed how nations are mis-regulating personal data through trade agreements, such as our old friend, the Trans-Pacific Partnership (TPP, now the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, or CPATPP, which is better because it’s comprehensive).  Our governments—the bad parts—are more than eager, under the misleading banner of free trade, to cater to corporations by signing away our fundamental privacy rights and allowing data to be exported beyond the reach of jurisdictional law.

So it all shakes out this way:  Bad government is the problem.  Good government is the solution.  We don’t have to worry about absolute journalistic independence from government.  We need to get good government to fund journalism that will fight bad government and its corporate cronies.  Save the journalism, save the world.  And don’t worry that good government will be holding the purse strings.  Because, try to keep up, it’s good.

Milosevic suggested that fines for corporate abuses of the public trust might be channeled into funding public interest journalism.  That’s not a bad idea.  There is an appealing symmetry to buying the watchdog’s food with a share of the savings.  It’s like preventive qui tam.

It’s also not a wholly new idea.  If with waning enthusiasm, the United States, like many countries, supports the arts and public libraries.  We experimented successfully with this approach in 20th-century broadcasting.  Public funding gave birth to such instrumental institutions as National Public Radio and Sesame Street.  As the public tap has been cinched off, both have turned to the private sector for a lifeline.  Sesame Street succumbed to HBO.  

Pngimg.com (CC BY-NC 4.0)

f we’re going to do public investment in free expression, the challenge is to keep an arm’s length between investor and speaker.  On that score, America has a lousy track record.  The American Library Association is so battle weary on the intellectual freedom front that a RightsCon dinner companion accused it of cowardice: a far fall from its heroism of yore, when it championed opposition to internet filtering and national security gag orders.  When Americans pledge public resources, passion for individual ingenuity is soon overwhelmed by feverish fealty to the Middle Ages maxim: whoever pays the piper calls the tune.

Yet, I am told, journalism must now turn to government to ensure its survival—to ensure all our survival.  I don’t disagree.  I’m just worried.

I’m giddy at the idea that we are witnessing an evolutionary renaissance of the Fourth Estate.  At the same time, I’m nauseated at the prospect of a Faustian bargain.

Journalism is dying.  If we try to save it with a multitude of stakeholders, maybe we can resuscitate the journalism of our ideals.

Or, like Dr. Frankenstein, we’ll zap into existence an all new hybrid.  Maybe we’ll have zombie journalism on our hands, and it will devour the stringy remaining flesh of our gaunt democracy.