Kerr on Aesthetic Play and Bad Intent @GeorgetownLaw

Andrew Jensen Kerr, Georgetown University Law Center, is publishing Aesthetic Play and Bad Intent in Minneosta Law Review Headnotes (2018) (forthcoming). Here is the abstract.

Threatening words or images are assumed by American courts to be non-art. But this threshold question of art status is complicated by the evolution of rap and performance art. There is no articulable way to discern art from non-art for these non-textual media, a problem compounded in the unique context of the Internet. In civil litigation we can resort to institutionalist tests like audience reception. But mens rea matters in criminal prosecution. I favor judicial pragmatism in what I argue here is a very non-legal area of law.

Download the article from SSRN at the link.

Gibson on Taming Uncivil Discourse: Does Reappropriating Group Insults Work? @WUSTL @SimonTheTam

James L. Gibson, Washington University in St. Louis, Department of Political Science, has published Taming Uncivil Discourse: Does Reappropriating Group Insults Work? Here is the abstract.

In an era of increasingly intense populist politics, a variety of issues of intergroup prejudice, discrimination, and conflict have moved center stage in American politics. Among these is “political correctness” and, in particular, what constitutes a legitimate discourse of political conflict and opposition. Yet the meaning of legitimate discourse is being turned on its head as some disparaged groups seek to reclaim, or reappropriate, the slurs directed against them. Using a Supreme Court decision about whether “The Slants” – a band named after a traditional slur against Asians – can trademark its name, we test several hypotheses about reappropriation processes, based on a nationally representative sample with an oversample of Asian-Americans and several survey experiments. In general, we find that contextual factors influence how people understand and evaluate potentially disparaging words, and we suggest that the political discourse of intergroup relations in the U.S. has become more complicated by processes of reappropriation.

Download the article from SSRN at the link.

Schauer on Oliver Wendell Holmes's Interpretation of the First Amendment @UVALaw

Frederick Schauer, University of Virginia School of Law, is publishing Every Possible Use of Language? in an Oxford University Press volume and as Virginia Public Law and Legal Theory Research Paper No. 2017-61. Here is the abstract.

This essay, written for a forthcoming Oxford University Press volume edited by Geoffrey Stone and Lee Bollinger, probes Oliver Wendell Holmes’s almost offhand statement in Frohwerk v. United States, 249 U.S. 204 (1919), that “the First Amendment... cannot have been intended... to give immunity for every possible use of language.” Although Holmes may not have seen the difference between this conclusion and the clear and present danger idea he offered contemporaneously in Schenck v. United States and Debs v. United States, in fact it may be the first hint of the now-important distinction between the coverage of the First Amendment and the protection it offers for covered speech. In observing that the First Amendment does not even apply to a vast range of linguistic behavior, Holmes provides the opportunity not only to recover Frohwerk’s importance in the pantheon of 1919 free speech cases, but also to explore the continuing relevance and importance of understanding that much – perhaps even most – linguistic behavior does not implicate the First Amendment at all, and thus does not trigger any form of heightened scrutiny.

Download the essay from SSRN at the link.

Brophy on Black Power in a Prison Library @unc_law

Alfred L. Brophy, University of North Carolina, Chapel Hill, School of Law, has published Black Power in a Prison Library as UNC Legal Studies Research Paper No. 2901475. Here is the abstract.

"Black Power in a Prison Library" focuses on a list of 90 books on the black experience in America that were ordered added to the Marion, Ohio Correctional Institution in 1972. It uses the list as a way of gauging what books the plaintiffs (and thus the court) thought were essential to telling the African American experience. And in that way, we can use the list to reconstruct the contours of the bibliographic world of the African American experience in the early 1970s. The list reflects an interest in history of slavery, Reconstruction and Jim Crow, the literature of the Harlem Renaissance, the 1960s Civil Rights Movement, and contemporary works on Black Power. Notably thin is prison literature. Together the books help form a picture of the critique of law made by Black Power writers and the ways those claims built on historical, sociological, and civil rights literature. The book list, thus, suggests some of the ways that books propagated and gave definition to Black Power claims.

Download the article from SSRN at the link.

A New Book on Speech: Barendt On Anonymous Speech: Literature, Law and Politics

Eric Barendt has published Anonymous Speech (Hart Publishing, 2016). Here is a description of the book's contents from the publisher's website.

Anonymous Speech: Literature, Law and Politics discusses the different contexts in which people write anonymously or with the use of a pseudonym: novels and literary reviews, newspapers and political periodicals, graffiti, and now on the Internet. The book criticises the arguments made for a strong constitutional right to anonymous speech, though it agrees that there is a good case for anonymity in some circumstances, notably for whistle-blowing. One chapter examines the general treatment of anonymous speech and writing in English law, while another is devoted to the protection of journalists' sources, where the law upholds a freedom to communicate anonymously through the media. A separate chapter looks at anonymous Internet communication, particularly on social media, and analyses the difficulties faced by the victims of threats and defamatory allegations on the Net when the speaker has used a pseudonym. In its final chapter the book compares the universally accepted argument for the secret ballot with the more controversial case for anonymous speech. This is the first comprehensive study of anonymous speech to examine critically the arguments for and against anonymity. These arguments were vigorously canvassed in the nineteenth century – largely in the context of literary reviewing – and are now of enormous importance for communication on the Internet.

 

Randazza on Ulysses as a Hero in the Fight for Freedom of Expression

Marc J. Randazza  @marcorandazza, Randazza Legal Group, World Intellectual Property Organization (WIPO), and Università di Torino Faculty of Law, is publishing Ulysses: A Mighty Hero in the Fight for Freedom of Expression in volume 11 of the University of Massachusetts Law Review (2016). Here is the abstract.

My high school teacher unceremoniously dropped Dubliners on our desks and insisted that we read it, or we would not pass the class, would not graduate, and would then never amount to anything. I resisted, finding no interest whatsoever, instead (most ironically) preferring to bury my nose into the works of Anthony Burgess. The irony lies in the fact that while I might have found Burgess more appealing to my teenage punk-rock nature, Burgess himself may have been the greatest Joyce fan in history. He so adored Ulysses that he smuggled a copy in to England, where it was banned at the time, by literally clothing himself in it — "As a schoolboy I sneaked the two-volume Odyssey Press edition into England, cut up into sections and distributed all over my body." That is what I call dedication. It was not until many years later, while I was working on a fishing boat off the coast of Alaska that Joyce took me captive. With no modern communication on the boat, I was left with two categories of reading materials — a collection of 3D pornographic comic books and the works of James Joyce. After devouring the comic books, I reluctantly picked up Joyce. I did manage to graduate from high school without reading Joyce, but at that moment, I regretted having done so. Years later, as a First Amendment attorney, I then realized that a large portion of what we consider to be modern freedom of expression would not be with us, but for Joyce's masterpiece. This article might not be more interesting than 3D Pornographic comic books to some, but with any luck the right people will put down the red and blue glasses and read it. If you're still reading this abstract, you are probably one of the right people.

Download the article from SSRN at the link. Hmmm. That particular type of comic book has never held any appeal for me, and I've always found James Joyce a hard slog, but, okay, I'll give him another try.

Deadline Extended: Call For Papers: Conference on Law, Authorship, and Appropriation, LSU, October 28-29, 2016

Call For Papers: Deadline Extended To June 15, 2016

 

Call For Papers: Conference on Law, Authorship, and Appropriation, LSU, October 28-29, 2016

Call for Papers

By Any Other’s Name: A Conference on Law, Authorship, and Appropriation

Louisiana State University, Baton Rouge, LA

October 28-29, 2016

On October 28-29, 2016, the LSU College of Music and Dramatic Arts, LSU School of Theatre, the LSU Law Center, LSU's ORED (Office of Research and Economic Development) and the Law and Humanities Institute will co-sponsor a conference on law, authorship, and appropriation on the LSU A and M campus in Baton Rouge, LA. This conference will bring together scholars, performers, and students to discuss law and authorship in the face of challenges issued by artists who engage in appropriation—the practice of taking the works of others to rethink or recreate new works.

Some artists who engage in appropriation may describe their activities as parody, sampling, or remixing. Some artists whose work is appropriated may describe the result as misappropriation. Writers might describe the use or reuse of words variously as hommage or plagiarism. Lawyers weigh in both sides of the issue, interpreting such reuse as fair use or infringement, depending on the circumstances.

Digital technology creates a host of new considerations, from the opportunity for a creator to license rights up-front (or not at all) to opportunities for users to create content cooperatively, either on the Web or in face-to-face settings. 

What do such changes, in law and in aesthetics and art, mean for our understandings of authorship and the relationship between creator and audience? Do words like “author” and “creator” even continue to have meaning?

General areas for possible paper topics include, but are not limited to:

Appropriation, theft, or something else

Cultural appropriation

Defenses to copyright infringement

Digital sampling and the law

Fair use and specific forms of artistic expression (parody, fan fiction, other)

History and concept of authorship

Plagiarism and originality in creation

Wearable technology and IP

We encourage proposals that engage all geographic areas and historical periods.

Together scholars and performers in the areas of free speech, copyright, and the arts to examine conflicts that arise between traditional creators of content and artists who use and/or re-use existing content to remake, remix and develop new works. In addition, the event will begin to examine some ways that the academy and the professions can educate young artists, attorneys, and students to understand these issues.  

The conference will provide opportunities for discussion, student engagement, and active learning with leading scholars and professionals in the industry in the areas of freedom of expression, intellectual property law, and the creative and performing arts. We also envision opportunities for performances that demonstrate some of the ways artists work proactively and thoughtfully in these areas.

To that end participants should be willing to engage with attendees in break-out and discussion sessions.

Performers are encouraged to submit proposals. If your proposal includes a performance, please indicate what kind in the abstract.

Paper Submission Information

Please send abstracts of no more than 500 words in PDF or Word format to Christine Corcos at christine.corcos@law.lsu.edu or Kristin Sosnowsky at ksosno1@lsu.edu by June 8, 2016. We will make decisions by June 20^th, 2016.

Some funding is available for successful applicants. Panelists will have the option to offer completed papers for inclusion in a peer-reviewed conference volume.

Cohen on Artistic Freedom, Privacy, and Literature

Nili Cohen, Tel-Aviv University, is publishing Love, Story, Law – From the Scarlet Letter to Freedom and Privacy in volume 28 of Law and Literature (2016). Here is the abstract.

What are the limits of artistic freedom? How beholden is literature to truth? How confined is literature by truth? What should be the fate of a book relating the love affair between an older married man and a young woman, with close accuracy, so much so that the young woman could be identified by distant acquaintances despite the pseudonyms? An Israeli Supreme Court case rendered a few years ago ruled that the publication of the book would harshly violate the woman’s privacy, while non-publication would moderately injure the author’s artistic freedom. Hence the publication of the book was prohibited and the author was liable to compensate his former lover in the sum of NIS 200,000. The triangle of Love-Story-Law is obviously not a unique Israeli matter. Similar stories raise universal hot debates. The Israeli case took an extreme stand compared with other legal systems. The statement “There are norms for which it is worth even losing a few ‘good books’” raises concerns about the enforcement of the right to privacy as an oblique way of imposing censorship on grounds of morality. The controversial judgment begs the question of its potential value as a precedent. Alternative balancing between the competing rights, some binary, some distributive, which have been adopted in German and American case law, reflect normative decisions along the axis through freedom of action, artistic freedom, privacy and conservatism. But apart from the question of balancing conflicting rights, our love story reveals a whole set of changing values which will be historically scrutinized, starting from Nathaniel Hawthorne’s story The Scarlet Letter. Both stories reflect changing normative, cultural and legal perceptions of the freedom to love, and of the power to control the exposure of love in public. The fate in life and literature of protagonists of intimate stories of this kind exhibits a history of a reversal of social-legal perceptions. Policing of personal intimacy gradually gives way to a loosening of sexual fetters and more freedom. At the same time control of publication on the public level yields to lifting the ban on circulation of obscene matter and entrenchment of practically unlimited freedom of expression. State responsibility for policing of such publications gives way to the individual’s bearing the burden of preventing publication of matters that might harm one's dignity, reputation and privacy. The courthouse that was once open to all, even for hearings on intimate family details, now offers protection of names and of identifying details of litigants followed by the closure of its doors to the public for hearings on personal matters. And finally the Platonic perception of art as dangerous and false imitation, to be hidden away, is replaced by the requirement of hiding art away because of the truth in it.

The full text is not available from SSRN.

Rotunda on the Right of Dissent and America's Debt to Herodotus and Thucydides

Ronald D. Rotunda, Chapman University School of Law is publishing The Right of Dissent and America's Debt to Herodotus and Thucydides at 1 Revista Estudos Institucionais (Journal of International Studies) 144 (2015). Here is the abstract.

The United States prides itself as a country that respects free speech, the right of all persons to criticize the government even in times of war. However, it was not always so. The events related to World War I brought the first cases raising free speech issues to the U.S. Supreme Court. While several justices, in particular, Oliver Wendell Holmes, praised free speech, the Court upheld all the Government prosecutions of dissidents. It has taken nearly a century since those cases for the Supreme Court to come full circle and now protect those who criticize the Government in time of war. When the Court changed its views to create the modern protections, it relied on philosophical justifications for free speech that go all the way back to the ancient Greeks, 2,400 years ago. The modern justification for free speech relies on these philosophers from ancient Greece. There is little new under the sun. While governments typically believe that, for the public good, they must censor speech and squelch dissenters in time of war, the Greeks believed that their free speech made them stronger, not weaker. There are those who argue it is more difficult for a democracy to go to war because it cannot conduct the war successfully if the people oppose it and dissenters remain free to criticize. That is a good thing, not a bad thing. In modern times, no democracy has warred against another. As Pericles reminds us, “[t]he great impediment to action is, in our opinion, not discussion, but the want of knowledge that is gained by discussion preparatory to action.” As other countries embrace democracy and protections for dissidents, our increased freedoms should bring us more peace and less war. 

Download the article from SSRN at the link. Cross-posted to Media Law Prof Blog.

Barnhizer On Political Correctness and Freedom of Speech

David Barnhizer, Cleveland-Marshall College of Law, has published 'Something Wicked This Way Comes': Political Correctness and the Reincarnation of Chairman Mao as Cleveland-Marshall Legal Studies Paper No. 291. Here is the abstract.

There could not possibly be any parallel between the actions of Mao Tse Tung’s young Red Guard zealots and the intensifying demands of identity groups that all people must conform to their version of approved linguistic expression or in effect be condemned as “reactionaries” and “counter-revolutionaries” who are clearly “on the wrong side of history”. Nor, in demanding that they be allowed to effectively take over the university and its curriculum while staffing faculty and administrative positions with people who think like them while others are subjected to “re-education” sessions that “sensitize” them into the proper way to look at the world’s reality, should we judge students and protesters such as those who submitted fifty Demands to the University of North Carolina to be in any way akin to the disastrous, repressive, immature and violent members of the Red Guard who abused China between 1966 and 1976. Nonetheless, though it would be unfair to compare the two movements, the Cultural Revolution does send out a warning we should perhaps spend a little time thinking about lest we repeat some of its errors. A brief descriptive capsule appears below. “The first targets of the Red Guards included Buddhist temples, churches and mosques, which were razed to the ground or converted to other uses. Sacred texts, as well as Confucian writings, were burned, along with religious statues and other artwork. Any object associated with China’s pre-revolutionary past was liable to be destroyed. In their fervor, the Red Guards began to persecute people deemed “counter-revolutionary” or “bourgeois,” as well. The Guards conducted so-called “struggle sessions,” in which they heaped abuse and public humiliation upon people accused of capitalist thoughts (usually these were teachers, monks and other educated persons). These sessions often included physical violence, and many of the accused died or ended up being held in reeducation camps for years.” I never thought I would be starting off an analysis by citing a description of the Red Guard’s re-education and thought control actions in Mao Tse Tung’s 1966-1976 Cultural Revolution and the words of Lesley Gore’s “You Don’t Own Me” song. But in the context of what is going on in American and European societies involving the comprehensive strategy to control freedom of speech through formal and informal mechanisms of power, Gore’s slightly edited (for length) language seems highly appropriate. Her in-your-face paean to independence of thought and action captures what we face.

Download the article from SSRN at the link.

Al-Alosi on Young People as Creators of Sexually Explicit Online Fan Fiction and the Australian Legal Regime

Hadell Al-Alosi, University of New South Wales, Faculty of Law, has published Young People as Creators of Sexually Explicit Online Material: Fan Fiction and the Law in Australia as UNSW Law Research Paper No. 2015-74. Here is the abstract.

Debate concerning the role of traditional media in the sexualization of young people tends to view young people as a special group of consumers who require protection from some media content and its potential risks. However, with the advent of new media technologies, young people are no longer passive consumers of sexualized representations, but also generators of sexually explicit material that is created and shared among their peers. This challenge has raised concern among those adults who remain ambivalent, or perhaps in denial, about the possibility that young people are sexually curious. Accordingly, this essay seeks to challenge the view that young people are simply passive recipients of sexual messages in the media by highlighting the role that young people play as producers of media content, in particular through the production of fan fiction. This essay investigates the potential criminalization of young people whose online communications about sex can be classified as criminal acts under Australia’s child abuse material legislation. Interviews were conducted with five members of the judiciary to ascertain how this kind of communication might be viewed in a court of law. This was conducted as part of larger research project that seeks to analyze how Australia’s child abuse material legislation may impact on the sexual self-expression of young people themselves.

Download the essay from SSRN at the link.

Call For Papers: Graphic Justice, SLSA 2016

Via the wonderful blog Graphic Justice:

Call for papers: Graphic Justice Theme for SLSA 2016

Graphic Justice

Convenor: Thomas Giddens

This stream invites submissions exploring the crossover between law and justice and comics of all kinds. A growing area of research, comics and graphic fiction are of huge significance to law, justice and legal studies. On the level of production, comics are a complex art-form, with multiple creators working in individual, group, commercial and industrial contexts, raising questions of ownership and exploitation. On the level of culture, comics are historically embroiled in debates of free speech whilst today inspire countless pop culture adaptations to television and cinema, and can be seen to reflect and shape popular visions of justice, morality and law. On the level of content, from mainstream superhero narratives tackling overt issues of justice, governance and authority, to countless themes related to morality, justice and humanity in stories beyond the mainstream, comics are replete with legal material. On the level of form, the comics medium’s unique and restless blending of different media and types of representation (text, image, visuality, aesthetics, inter alia) radically opens up discourse beyond the confines of the word, enabling greater critical engagement amidst our increasingly visual age. In short, comics bring rich cultural, practical and aesthetic contexts and mediations to long-standing and emerging legal problems and settings.

Broad questions framing this ‘graphic justice’ intersection might include: What are the relationships between comics and law—culturally, socially, theoretically, jurisprudentially...? How can we use comics in law—in practice, education, theory, research...? Can we consider comics as an object of legal regulation in their own right—raising issues of definition, ownership, consumption, value...? The crossover between law and comics is an expansive and open one. The examples above are merely indicative of possible issues and questions; submissions are welcome for papers that traverse any potential intersection between law and comics—both broadly defined.

Abstracts may only be submitted via the Easy Chair Platform. They must be no longer than 300 words and should include your title, name and institutional affiliation and your email address for correspondence.

The deadline for submissions is Monday 18th January 2016.

Cusack on the "F Word" in Pedagogy and Higher Learning

Carmen M. Cusack, Nova Southeastern University, is publishing Use of the Word 'Fuck' in Pedagogy and Higher Learning in volume 8 of the Journal of Law & Social Deviance (2014). Here is the abstract.

George Carlin famously stated that “fuck” is “perhaps one of the most interesting words in the English language today. In English, ‘fuck’ falls into many grammatical categories. With all these multipurpose applications, how can anyone be offended when you use the word?” Discussing “fuck” as a fascinating component of grammar certainly makes the word “fuck” seem like it belongs in academia. This Article endeavors to analyze students’ complex opinions about use of the word “fuck” in American pedagogy and higher learning. Section II analyzes First Amendment case law and use of the word in educational and societal contexts. Section III discusses some Sociology students’ opinions about the use of the word “fuck” in pedagogy and higher learning. Their perspectives about the use of the word include positive, negative, and neutral feelings and perceptions. Ultimately, students felt positively about the use of the word, in general, and felt that free speech protected its use at their public university. However, many students cautioned that context was important to maintaining a safe learning environment, avoiding offense, and appropriately expressing ideas. They also suggested several contexts in which use of the word “fuck” would be inappropriate. Section IV discusses how students’ opinions may be relevant to educators’ decision to include the word “fuck” in pedagogy, and also considers legal and social standards that limit such speech. Students’ opinions about propriety may be important for understanding Constitutional jurisprudence and speech limits in pedagogy because limits on speech are often defined by the words’ offensiveness.

Download the text of the article from SSRN at the link.

How the Law Treats Deceptive Speech

Stuart P. Green, Rutgers, The State University of New Jersey, School of Law (Newark) is publishing Lying and Law in The Oxford Hankbook of Lying (Joerg Meibauer, ed. OUP, forthcoming). Here is the abstract.

How should the law regulate lies and other forms of deception? Sometimes, it takes a hard line, subjecting those who engage in deception to serious criminal or disciplinary sanctions. Other times, it is quite tolerant, declining to impose sanctions, and even affording certain kinds of deception constitutional protection. This chapter, written for a wide-ranging, interdisciplinary collection of essays on lying, offers a general survey of a very broad topic, focusing primarily on U.S. law, but also attempting, in a selective manner, to contrast that law to the law of other jurisdictions. The discussion begins with a consideration of the various ways in which deception functions as an element in three very different sorts of criminal offenses: perjury, fraud, and rape by deception. It then looks at how the law regulates deception by the police (during interrogations) and by lawyers (to courts and to their adversaries). Finally, it consider the possibility that deception used by the media and in the course of political campaigns might lie beyond the scope of permissible legal regulation. The main point will be to show how the law’s treatment of deception varies depending on the role of the person doing the deceiving (e.g., private individuals vs. government officials) and the social context in which the deception occurs (such as a courtroom, the marketplace, a police station, or a sexual encounter). More generally, it is intended to show the quite nuanced ways in which the law seeks to deter deceptive speech that is truly harmful without “chilling” deceptive speech that is harmless or even socially beneficial.

Download the essay from SSRN at the link.

Criminalizaing Hate In a Democracy

R. A. Duff, University of Minnesota School of Law & University of Stirling Department of Philosophy, and S. E. Marshall, University of Stirling, are publishing Criminalizing Hate? in Hate, Politics, Law (T. Brudholm & B. Schepelern Johansen, eds.; Oxford University Press, --) (Forthcoming). Here is the abstract.

This paper explores the role that criminal law might play in combating ‘hatred’, in particular whether and why we might appropriately criminalize ‘hatred’. In s. 1 it sketches some salient features of a liberal, democratic republic (as the kind of polity in which we can aspire to live, and whose citizens can be expected to be committed to combating ‘hatred’). In ss. 2-3, we then explain why a certain kind of ‘hatred’ should concern members of such a polity, as a distinctive civic vice manifested in a distinctive kind of civic wrong. In ss. 4-5, we discuss the limited but significant role that criminal law can play, in principle, in responding to such hatred. Finally, in s. 6, we say a little about the difficulties involved in turning ‘in principle’ into ‘in practice’, particularly those concerning offence definitions.

Download the essay from SSRN at the link.

Conduct, Speech, and the NLRA

Christine Neylon O'Brien, Boston College School of Management, is publishing I Swear! From Shoptalk to Social Media: The Top Ten National Labor Relations Board Profanity Cases in volume 90 of St. John's Law Review (2016). Here is the abstract.

Waitresses at Hooters got into a swearing match in front of customers over a mandatory bikini competition that was rumored to be rigged. An off duty barista at a New York Starbucks used profanity in a heated conversation with a manager that also took place in the presence of customers. Employees at a Manhattan catering service complained to the director of banquet services about the hostile, degrading, and disrespectful treatment they received from managers. Then, just prior to a National Labor Relations Board (NLRB) election, servers were repeatedly told by their manager to spread out and stop talking to each other. One server posted profane remarks about the manager on his Facebook page while he was on break, including a plea to vote for the union. In other instances, employees profanely commented on social media about their boss’ ineptitude at tax withholding; locked out bargaining unit members made vulgar comments and gestures to those who crossed the picket line; and unionized employees were told not to wear buttons in the presence of customers that contained language that bordered on profanity. All these examples refer to recent unfair labor practice cases that were brought to the NLRB by employees or their unions when employees were terminated for their use of profanity while engaged in concerted activity that was otherwise protected by Section 7 of the National Labor Relations Act (NLRA). This article curates and analyzes ten recent cases involving employee communication laced with profanity. It informs managers and employees of the rules that the NLRB is currently following in this area, and the key factors that the Board weighs when considering whether conduct loses NLRA protection. The paper summarizes these top ten cases in an informative table, and then outlines why the NLRB or an administrative law judge determined the conduct was protected by the NLRA, and, if so, whether that protection was lost because of the egregiousness of the employee’s misconduct. In many of these cases, the Board found employer rules relating to profanity were overbroad because they unduly infringed upon employees’ Section 7 right to communicate about wages, hours, working conditions or matters of mutual aid and support. Cases involving employee dishonesty during an employer investigation into profane or offensive conduct and/or racial or sexual harassment are compared, and important distinctions are made.

Download the article from SSRN at the link.

The Islamic Tradition, the Arts, and Freedom of Expression

Eleni Polymenopoulou, Brunel University London, is publishing A Thousand Ways to Kiss the Earth: Artistic Freedom, Cultural Heritage and Islamic Extremism in volume 17 of the Rutgers Journal of Law and Religion (Fall 2015). Here is the abstract.

The paper discusses controversies on freedom of expression and the arts, focusing on Islam and Muslim sensibilities. Drawing from historical examples and the perception of visual arts and music in the Islamic tradition, it attempts to shed light upon incidents such as the Charlie Hebdo attacks and the intentional destruction of cultural heritage by extremists in Mali, Syria and Iraq in the case of global-scale controversies. After examining the concepts of blasphemy (sabb), apostasy (ridda) and idolatry (shirk) in Islamic law, it considers the legitimacy of legal claims related to blasphemous expressions from an international law perspective. The paper distinguishes between violent and non-violent claims and argues that freedom of expression should prevail in all cases involving blasphemy and offences to sensibilities. It also takes the view, however, that this solution is not necessarily a sustainable one. Empowering cultural rights as a whole, rather than seeking to resolve a fictitious conflict between rights, seems to be a more effective pathway to address complex issues involving religious extremism and hate speech.

Download the article from SSRN at the link.

A New Book on Law and Film

Forthcoming from the University of Texas Press: Jeremy Geltzer's Dirty Words & Filthy Pictures: Film and the First Amendment (2015). Here is a description of the content from the publisher's website.

From the earliest days of cinema, scandalous films such as The Kiss (1896) attracted audiences eager to see provocative images on screen. With controversial content, motion pictures challenged social norms and prevailing laws at the intersection of art and entertainment. Today, the First Amendment protects a wide range of free speech, but this wasn’t always the case. For the first fifty years, movies could be censored and banned by city and state officials charged with protecting the moral fabric of their communities. Once film was embraced under the First Amendment by the Supreme Court’s Miracle decision in 1952, new problems pushed notions of acceptable content even further. Dirty Words & Filthy Pictures explores movies that changed the law and resulted in greater creative freedom for all. Relying on primary sources that include court decisions, contemporary periodicals, state censorship ordinances, and studio production codes, Jeremy Geltzer offers a comprehensive and fascinating history of cinema and free speech, from the earliest films of Thomas Edison to the impact of pornography and the Internet. With incisive case studies of risqué pictures, subversive foreign films, and banned B-movies, he reveals how the legal battles over film content changed long-held interpretations of the Constitution, expanded personal freedoms, and opened a new era of free speech. An important contribution to film studies and media law, Geltzer’s work presents the history of film and the First Amendment with an unprecedented level of detail.

Cross-posted to the Media Law Prof Blog.

The Right To Freedom of Assembly

Orsolya Salait has published The Right to Freedom of Assembly: A Comparative Study (Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

Assembly is natural to people, and it reflects and shapes cultural values. People do it for many reasons: noble or base, dangerous or innocent, social or political, strategic or communicative. But, despite the general significance of assembly, the right to freedom of assembly was often subjugated to the right to freedom of expression, both in courts and in legal scholarship. Regarding freedom of assembly, this comparative study examines five influential jurisdictions in Western human rights jurisprudence and reveals the similarities and inconsistencies between them. It also exposes their shortcomings, such as the United States' narrowly-focused content neutrality and public forum, the UK's blanket bans based on intangible and distant harm, Germany's preventative restrictions and viewpoint discrimination, and France's uncertain status and opaque judicial reasoning. Such divergence among European States hinders the development of a consistent assembly doctrine by the European Court of Human Rights. The book argues that it is time for jurisprudence to recognize values specific to freedom of assembly and move away from a narrow focus on expression.

But What Did I Say?

Chi Luu discusses how innocuous-sounding words or phrases can actually be highly offensive language, here, for JSTOR Daily.