- Fourth Circuit rejects gag order on parties and potential witnesses in North Carolina hog farm litigation [Eugene Volokh]
- Eighth Circuit, interpreting Missouri law’s obligation to register as “lobbyist,” leaves open possibility that requirement extends to unpaid lobbyists, also known as concerned citizens [Jason Hancock, Kansas City Star; Institute for Free Speech on Calzone v. Missouri Ethics Commission]
- “9 Months in Prison for Forging Court Orders Aimed at Vanishing Online Material” [Volokh] Per one account at least 75 fake court documents have been sent to Google as part of takedown efforts, including an order purporting to come from the UK Supreme Court [same]
- The accused pipe bomber had made online death threats against Ilya Somin, libertarian lawprof and friend of this site. Lessons to draw? [Cato Daily Podcast, more]
- Entanglement of press and state leads nowhere good: Canadian government to allocate C$600 million in subsidies to newspapers and legacy media [Stuart Thomson, National Post; earlier on press subsidies here, here; some Canadian background from 1983]
- Court: First Amendment doesn’t protect Comcast from bias charge over its decision not to carry block of black-owned TV channels [Jon Brodkin, ArsTechnica]
A website devoted to legal issues raised by episodes of the comedy Seinfeld. Check it out!
My new piece at CNN begins by noting that antitrust law has moved on since the Truman era, even if the U.S. Department of Justice hasn’t quite:
In 1948 the US Supreme Court ordered Hollywood studios to sell their movie theaters, following the then-popular idea that the government should police marketplace competition by restraining businesses’ vertical integration — or as we might put it these days, by ordering content kept separate from distribution.
The surprise in 2018 is not so much that US District Judge Richard Leon rejected the government’s challenge to the $85 billion AT&T-Time Warner merger. That much was expected by most antitrust watchers. The shock came from the stinging way he rejected the government’s evidence — using language such as “gossamer thin” and “poppycock.”
CNN, of course, is owned by merger participant Time Warner. The question is not whether vertical integration will happen in video delivery, but whether older companies will be allowed to catch up. For Washington to block a merger like this, I suggest, “would be as futile as attempting to separate Net from Flix or You from Tube.”
Sinclair Broadcasting, currently under fire for having local news talent read a canned script, is itself the product of earlier rounds of anti-media-consolidation rules, and tales of “70 percent market share” tales are sheerest bunk, reports Matt Welch [Reason] On local use of canned scripts, see also the regular Conan feature “Newscasters Agree.”
“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” — @realdonaldtrump Wednesday morning. Later that day he tweeted, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”
As was quickly pointed out [AP], the chances are extremely remote that presidential wrath is actually going to cost any broadcasters their licenses (networks as such are not licensed, but their local affiliates are, including network-owned local stations). First Amendment attorney Floyd Abrams said that the threats could nonetheless have a chilling effect on coverage: “The threat, however unlikely, is one that broadcasters will have to take seriously.”
Note that the threat is utterly inconsistent with Trump’s having recently reappointed Ajit Pai to head the FCC. Had the chief executive seriously contemplated a drive against the broadcast licenses of his foes, as a 1960s-era president might have done, Washington is full of aspiring agency heads who would have served his ends better than free-marketeer Pai. Not for the first time, it would seem we have a President whose Twitter hand knows not what his signing hand is doing.
Pai said that he also sees “worrying signs” at the FCC, pointing to Twitter messages in which “people regularly demand that the FCC yank licenses from cable news channels like Fox News, MSNBC, or CNN because they disagree with the opinions expressed on those networks.”
“Setting aside the fact that the FCC doesn’t license cable channels, these demands are fundamentally at odds with our legal and cultural traditions,” Pai said.
John Samples reminds us of the bad bipartisan history of power plays aimed at broadcast speech, which didn’t work for Richard Nixon. David Harsanyi writes that “even if you’re not idealistic about free expression, it might be worth remembering that any laws or regulations you embrace to inhibit the speech of others, even fake-news anchors, can one day be turned on you.”
Of course, another theory one hears is that Trump doesn’t really mean it with his loose talk about curbing press freedom but is just, as it were, vice signaling.
Press accounts suggest that the Trump White House has given thought to using its leverage over the pending AT&T merger to pursue the President’s grievances against CNN, which is owned by merger participant Time Warner. Dangerous, though hardly unprecedented, stuff, I argue in my new post at Cato.
- Good news for Donald Trump! Sticking with speech-protective opinion rule, New York judge dismisses libel suit by PR consultant against him based on his derogatory tweets [ABA Journal]
- “Jawboning” at FCC, under which media companies bend to commissioners’ wishes on content and hiring rather than risk their disapproval, should be recognized as danger to both First Amendment and rule of law [Brent Skorup and Christopher Koopman, Regulation via Cato Institute Tumblr summary]
- The family of Ahmed Mohamed, of schoolboy clock fame, may have to pay $200,000 or more to targets of frivolous libel suits [Popehat]
- Harsh epithets, calls for investigation and accusations of whitewashing, rhetorical comparisons to infamous persons could all lead to media liability if D.C. Court of Appeals reasoning in Michael Mann case isn’t overturned [Ilya Shapiro and Thomas Berry, Cato, earlier]
- NYC, San Francisco criminalize listing property on AirBnB except on authorized conditions. A question of commercial speech [Glenn Lammi, WLF]
- Can Colorado regulate groups that run ads with the message “call your lawmaker to support this bill”? [Ilya Shapiro and Thomas Berry]
Brokers who advise retirement investors are bracing for more intense regulation under the Labor Department’s new “fiduciary” rule, and some are already planning to reduce the business they do. The rule is also expected to accelerate a shift toward fee-based investment advice, and is welcomed by some fee-based advisors. [Michael Wursthorn, WSJ] Perhaps less expectedly, the rule could trip up large numbers of persons who less obviously fit the role of financial advisor. John Berlau, Forbes:
Experts both for and against the rule I have talked to agree its broad reach could extend to financial media personalities who offer tips to individual audience members, a group that includes not just Ramsey but TV hosts like Suze Orman and Jim Cramer, as well as many other broadcasters who opine on business and investment matters. They would be ensnared by the rule’s broad redefinition of a vast swath of financial professionals as “fiduciaries” and its mandate that these “fiduciaries” only serve the “best interest” of IRA and 401(k) holders.
One insurance agent, Michael Markey, has written that such media personalities need to “be regulated and to be held accountable” by the government for the opinions he dish out, and “hailed the Labor Department rule as ushering a new era in which “entertainers …can no longer evade the pursuit of regulatory oversight.” Prof. Bainbridge wonders whether there might be a First Amendment issue lurking here, as well as an impulse to support regulation that works to handicap one’s competitors.
Football analyst Craig James, who is filing a federal lawsuit in Dallas, claims that “Fox Sports trample[d] my religious liberty” by not giving him further work as a TV commentator after a single appearance — he “had yet to sign a contract” — after it became aware that he had said controversial things while running for the U.S. Senate seat from Texas ultimately won by Ted Cruz. [Washington Post, Feb. 2014 Dallas News] James is now affiliated with the Family Research Council, where his biography notes: “Craig is known for his ability to see an opportunity and for his relentless pursuit of uncovering every rock to make sure he knows the deal before he buys it.”