Survey: 2015 Media Law

Survey of New York Media law for 2014–2015.

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Roy S. Gutterman is an Associate Professor and Director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University

Survey: 2014 Media Law

Survey of New York Media law for 2013–2014.

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Roy S. Gutterman is an Associate Professor and Director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University. The author wishes to thank Jennifer Osias, Tully Center Research Assistant, for her assistance on this study.

Survey: 2012 Media Law

Survey of New York Media law for 2011–2012.

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Roy S. Gutterman is an associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University. Special thanks to Alicia Wright, Tully Center research assistant, for her thorough assistance on this Article.

Comment: Suffering in Silence: The Dark Side of Judging in 2013

This Comment is intended to show the dark side of judging.  This paper was written with the intent to provoke discussion about the very important topic of judicial security and internet safety.  The purpose of this Comment is to allow the reader to place themselves in the role of a judge who is enduring these threats on a daily basis.  I ask the reader to feel what a judge feels and then think about steps that may need to be taken to further protect these judicial officers and public servants.  More importantly, what can be done to protect their families?  The advent of social media and the internet is allowing judicial predators to post pictures of judges’ children and grandchildren online.  How would you feel if it was your child or grandchild?

This Comment is not about an analysis of free speech, privacy, or any other law, rule, or procedure.  It is simply about determining what is right and what is wrong.  Is the risk mentioned in this paper a new part of the job description when a person is appointed to the federal bench?  Would you assume this very real risk that could affect the health and safety of your family?

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Andrea Henson-Armstrong: Professorial Lecturer, Information Systems and Technology Management Department, George Washington University; Instructor, Judicial Administration Program, Michigan State University. MS-IST, George Washington University; J.D., University of the District of Columbia; B.A., University of California, Riverside.

Article: From Peoria to Peru: NLRB Doctrine in a Social Media World

The National Labor Relations Board’s (the “NLRB” or “Board”) interest in social media issues has surprised many practitioners.  Over a nine-month period spanning the end of 2011 and beginning of 2012, the Board’s Acting General Counsel (“AGC”) issued three reports, totaling eighty-three pages, analyzing dozens of potential cases involving social media matters.  Some of the cases involved sensational facts—for example, the ambulance company employee who called her supervisor a “scumbag” and compared him to a psychiatric patient on Facebook, or the auto dealership employee who lambasted his employer online over the “less than luxurious” food and drink offered to customers at a company event, or the bartender who complained on Facebook about the bar’s customers, calling them “rednecks” and hoping they choked on glass as they drove home drunk.  Other cases analyzed by the AGC dealt with more mundane matters, such as whether an employer’s social media policy was drafted in a manner that could potentially restrict an employee’s right to engage in protected concerted activity under the National Labor Relations Act (“NLRA” or the “Act”).

Given the dramatic rise in social media use in the United States, it is not surprising that the Board has expressed a strong interest in analyzing its use in light of established Board law.  By its nature, social media is the perfect vehicle both for “protected, concerted activity” and immeasurably idiotic and flippant statements.

The Board, like any adjudicative body, applies its established legal precedent to the facts at hand.  Nevertheless, law is a fluid principle.  This Article advances a theory that the Board’s application of its established “brick and mortar” case law in matters involving social media fails to appropriately acknowledge the very nature of social media.  Rather than merely apply old standards, the Board should make a creative effort to develop new standards that recognize an employer’s legitimate need to control employee outbursts in a digital age where “going viral” can dramatically alter public perception overnight.  Despite the Board’s attempt to fit these discussions into the traditional and comfortable box of “water cooler” discussions, the simple fact is that these are not “water cooler” discussions.  These are words and images that travel from Peoria to Peru in the proverbial nanosecond, capable of being stored and captured on a digital timeline forever.  The Board must respond to this reality or remain what former NLRB Chairwoman Wilma Liebman famously described as the “Rip Van Winkle” of administrative agencies.

Part I of the Article provides an overview of various social media platforms.  Part II outlines the traditional framework within which the Board has evaluated protected concerted activity, while Part III explains how the Board, Administrative Law Judges (“ALJs”), and the NLRB’s Division of Advice and AGC have attempted to apply these traditional tests to social media activity.  Part IV highlights the limitations of this approach and provides suggestions for a new applicable legal standard that properly acknowledges the risks associated with employee misuse of social media and distances itself from the ill-fitting “water cooler” analogy.

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Colin M. Leonard is a member and Tyler T. Hendry is an associate at Bond, Schoeneck & King, PLLC in the Firm’s Syracuse, New York office.  Both practice in the Firm’s Labor & Employment Law Department.

Article: Uncertainty Squared: The Right of Publicity and Social Media

The laws of probability tell us that the likelihood of a particular result goes down dramatically as the number of variables on which that result depends goes up.  So, for example, while the odds of rolling an even number on a six-sided die is ½, the odds of rolling two even numbers on two dice is ½ times ½, or only ¼.

Predicting the applicability of publicity rights law in the context of social media is a bit like that.  Each variable in the equation is itself the subject of greater-than-average uncertainty compared to other fields of law and technology.  The right of publicity, for example, is generally treated as a species of intellectual property (“IP”), yet it is a product of state (as opposed to federal) common law, and has only been acknowledged by barely more than half of the states.  It has as many sources of law as it does jurisdictions that recognize it—more, in fact—and many of its critical elements remain either disputed or undeveloped.  Likewise, social media—as we currently understand that term—has been in the public consciousness for not much longer than five years; yet it has already come to dominate the way that individuals and entire societies communicate worldwide.  At the same time, the technology behind, and precise expressions of social media remain incredibly fluid, with individual forums rising from obscurity to prominence and back again all within the space of a year.  The proper role of social media in civil society and the parameters of the law that governs it, therefore, are equally uncertain.

Keeping these caveats in mind, however, it is nevertheless both possible and fruitful to explore how the right of publicity—that is, the right of an individual to control the commercial exploitation of his or her identity—will manifest itself in social media.  This is actually quite an important inquiry, since the very thing that makes social media special is that it enables individuals to create and deepen interpersonal relationships with specific people—often, people they already know through other means.  The identities of our online “friends” and “followers,” therefore, are a crucial component of our social media experience.

The companies that provide these experiences realized this long ago.  Indeed, since social media users generally do not pay for the privilege of using the service, the service providers have based their entire business models on exploiting their unique access to our interpersonal relationships.  The initial, easiest, and still-predominant way that they profit from our use of their services is by selling advertisers access to our eyeballs.  But as social media services have become more sophisticated and the pressure to monetize the services has increased, service providers have dug deeper into the granular detail of our interactions in order to target their ads even more effectively.  In many cases, they are relying on the credibility of our friends to sell us goods and services.  As discussed below, that practice has given rise to legal action by social media users who argue that this amounts to a commercial exploitation of their identities in violation of the right of publicity.

At the same time, social media’s focus on interpersonal relationships naturally results in a lot more data about individuals being shared in digital form than had previously been done.  That, in turn, naturally increases the probability that some of that data will be exploited by commercial means—again implicating the right of publicity.

For several decades before the advent of the social internet and related forms of digital publishing, the right of publicity was a curious blend of privacy, IP, and First Amendment law that was litigated only infrequently and barely registered in the public consciousness.  Courts went so far as to explicitly hold that only “celebrities” could even possess the right, and the realities of pre-internet media imposed severe limits on the ability of any given person to achieve enough celebrity to make their identities worth exploiting commercially.  Social media—along with reality TV, self-publishing, and the internet in general—changed all that.  Perhaps, therefore, the example of rolling two dice is not as apt of an analogy as it may first seem because those two variables are completely independent of each other.  The development of publicity rights case law and social media, by contrast, may well depend in large part on each other.

The discussion below begins with a brief summary of the right of publicity, including its elements, development, and remaining areas of uncertainty.  It then examines several of the most likely ways that this body of law will influence, and be influenced by social media including:  the manner of measuring the “commercial value” in an individual’s identity; the proper amount of damages for misappropriations of that identity; the availability of defenses based on the First Amendment, the Copyright Act, and other related legal rights; and the role social media plays in fueling publicity rights violations.

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Brian D. Wassom: Partner and Chair of the Social, Mobile and Emerging Media Practice Group at Honigman Miller Schwartz and Cohn, LLP (Bloomfield Hills, MI); Instructor of Social Media Law and Ethics at Central Michigan University; law clerk to the Hon. Alice M. Batchelder, United States Court of Appeals for the Sixth Circuit (1999-2000); J.D. magna cum laude, Case Western Reserve University School of Law (1999).

Article: Why We Can’t Be Friends: Preserving Public Confidence in the Judiciary Through Limited Use of Social Networking

Judges occupy a special place in American society.  Their actions, both inside and outside the courthouse, play an integral role in the public’s respect for, and confidence in, the legal system.  The existence of an independent, fair, and impartial judiciary is the hallmark of the American legal system.  By necessity, judges are held to a higher standard of professional conduct than other members of the legal profession, and their personal and professional activities are subject to heightened scrutiny by members of the profession and the public.  Although judges are members of the larger community, they hold an elevated position as symbols of the law and justice.  As a result, a judge’s actions and behaviors have ramifications far beyond how members of the public view the judge as an individual.  What a judge does or says reflects directly on the integrity of the judicial system.

When a member of the judiciary utilizes social media to communicate with colleagues, friends, and family members, a legitimate risk exists that his or her actions or statements may undermine the public’s confidence in, and respect for, the judiciary.  In some ways, the use of social media is no different than direct communication because certain acts or statements would be construed as clearly improper regardless of the medium.  In either forum, a judge may actually say or do something that undermines the public’s confidence in the judicial system, such as divulge confidential information, comment on a pending case, or use the prestige of the bench for personal gain.  In clear cases, the method by which the message is delivered is irrelevant.  However, there is a more subtle but equally dangerous risk associated with the use of social networking.  Unlike direct person-to-person communication, online communication does not offer the benefit of context, emotion, or in many cases visual aids that provide clarity to the meaning and purpose behind a particular communication.  Rather, most online communication is static and heavily dependent on the recipient of the communication to discern the meaning, purpose, or intent behind the words used.  Thus, when individuals, including judges, post comments online there is a greater risk that those who read the comment will misunderstand the message and form erroneous and unfounded opinions.  Whether a judge’s words or actions are clearly improper or merely misconstrued, the impact can be substantial and serve to undermine judicial canons employed to promote public confidence in the judiciary.

Members of the legal profession, including judges, continue to embrace social networking in both their personal and professional lives.[1]  In one recent survey, 40% of responding judges reported that they engage in social media, such as Facebook.[2]  That number is expected to increase.[3]  Such use can promote the efficient and effective administration of services, but it can also present unique challenges for those individuals seeking to comply with professional rules of conduct.  Although the federal judiciary has not issued an ethics opinion on the use of social media by judges, the Committee on Codes of Conduct within the Judicial Conference of the United States has recognized the potential hazards and drafted proposed guidelines on the use of social media by judicial employees.[4]  The Committee acknowledged that the use of social media “raises ethical, security, and privacy concerns for courts and court employees.”[5]  It noted that the limited ability to effectively control or retrieve communication once released poses unique problems for courts.[6]  The inability to ever completely erase or delete comments, coupled with the ability to preserve and replicate posted messages exacerbates the potential risks.[7]  The Committee also noted that due to a perceived sense of anonymity, individuals may engage in conduct online that they might refrain from engaging in in person.[8]  These issues are problematic for judges who must carefully balance their role as members of the community with their elevated status as a symbol of the judicial system.

Technology plays a significant role in the provision of legal services, but its uses are not without risk.  As the use and influence of social media continues to grow, it is essential for the legal profession to understand how its members use and share content on these sites.  It is equally important to consider how society’s evolving perspective on privacy and online communication should apply to judges.  In 2011, the American Bar Association (“ABA”) Commission on Ethics 20/20 examined the use of new technologies in the practice of law and found that with some additional clarification the current rules governing attorney conduct are sufficient to address the use of that technology, including online communications.[9]  While these rules offer guidance on appropriate judicial behaviors, alone they are insufficient to address the unique challenges posed by social networking.

This Article considers the rapid rise in the use of social media and its use by members of the judiciary, and asserts that judicial canons drafted prior to the advent of social media outlets are inadequate to address the risk posed through the use of social media.  Part I provides a brief overview of the rapid emergence of social media as a primary mode of communication and the unique risks it poses for users.  Part II provides a brief summary of codes of judicial conduct that are relevant to a judge’s use of social media.  Part III evaluates recent state judicial ethics opinions addressing the use of social media.  Part IV argues that a restrictive approach to the use of social media, which has been adopted by several states, is necessary to protect the integrity of the judicial system.  Part V offers recommendations to balance the competing interests of protecting the judiciary and allowing judges to participate in the communities they serve.

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Helia Garrido Hull: Associate Professor of Law and Coordinator of Student Professionalism Enhancement Program, Barry University Dwayne O. Andreas School of Law; B.A. Providence College, J.D. Stetson University College of Law.



[1].  Nicole Black, A Look at Lawyers’ Use of Technology in 2011, Sui Generis (Oct. 4, 2011), http://nylawblog.typepad.com/suigeneris/2011/10/a-look-at-lawyers-use-of-technology-in-2011.html.

[2].  Conference of Court Pub. Info. Officers, Report of the New Media Comm. of the Conference of Court Pub. Info. Officers 19th Annual Meeting, New Media and the Courts:  The Current Status and a Look at the Future 7, 9 (released Aug. 26, 2010) [hereinafter CCPIO], available at http://ccpio.org/wp-content/uploads/2012/02/2010-ccpio-report-summary.pdf.

[3].  Id. at 10.

[4].  See generally Comm. on Codes of Conduct, Judicial Conference of the U.S., Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees (Apr. 2010), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/conduct/SocialMediaLayout.pdf.

[5].  Id. at 5.

[6].  Id.

[7].  Id. at 6.

[8].  See generally CCPIO, supra note 3.

[9].  Am. Bar Ass’n Comm’n on Ethics 20/20, Initial Draft Proposals—Technology and Confidentiality, http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/20110502_technology.authcheckdam.pdf (last modified May 2, 2011).

Survey: 2011 Media Law

Roy Gutterman provides an update of Media Law between July 1, 2010 and June 30, 2011..  There was no shortage of interesting and novel cases with First Amendment implications this Survey year. State and federal courts in the jurisdiction took on a range of cases involving important free press implications with newspapers and traditional journalists, as well as cases involving high-profile and widely popular media parties, ranging from comedian Jerry Seinfeld to popular television shows Law & Order and Real Sports with Bryant Gumble, to films such as Couples Retreat. Issues involving liability for internet-based content also emerged again this year.

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Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.

Survey: 2010 Media Law

Roy Gutterman provides an update of Media Law between July 1, 2009 and June 30, 2010.

This year’s media law Survey covers defamation, invasion of privacy, and intellectual property disputes involving media ranging from newspapers, magazines and book publishers to websites and internet-based operations. Cases cover high-profile litigants linked to the late, tabloid star Anna Nicole Smith, radio personalities, and a host of parties involved in newsworthy and public affairs. Cases also involve allegations of criminal activity, sex tapes, copyright infringement, and even whether offensive language can be broadcast on television.

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Roy S. Gutterman is an associate professor of communications law and journalism and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications at Syracuse University.