Media and Law: Between Free Speech and Censorship: Volume 26

Cover of Media and Law: Between Free Speech and Censorship
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Table of contents

(13 chapters)

Prelims

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Part I: Spaces and Institutions of Free Speech

Abstract

Purpose – It may be time to reformulate the rejection of censorship. Freedom is not the only opposite of, strategic resource against, or antidote to, censorship. Methodology/Approach – This chapter argues against censorship with a Kantian-normative approach (the deontological position of the categorical imperative), using conceptual analysis, constructivism, and international legal scholarship, from the standpoint of a humanity-wide duty to safeguard and promote cultural diversity and biodiversity. Increasingly visible weaknesses of the argument against censorship from the utilitarian standpoint of freedom, a negative argument, can be avoided in this way. Findings – Especially the neoliberal approach to freedom has no provisions against corporate and only little against copyright censorship, which are both becoming increasingly acute. Diversity, on the other hand, both biological and cultural, is argued to be instrumentally good, and intrinsically good, but the latter only if balanced by equality of basic rights. Originality/Value – The resulting moral and legal imperatives are to support, safeguard, and promote diversity, and thus to minimize both censorship in culture and selection/elimination in nature, but only to minimize them, simply because they cannot themselves be eliminated. It is impossible to eliminate elimination. This becomes clear when one considers self- and soft censorship. At least in the wide sense, censorship is inevitable – but sustainable development is impossible without strict minimization of censorship.

Abstract

Purpose – This chapter explores the topic of free speech protections and social media use in academia through an examination of the current legal landscape as it applies to various stakeholders on university campuses in the United States. The authors focus this examination primarily on public universities. Methodology/Approach – Legal research methods were utilized, including an analysis of relevant United States federal and state laws, case law, and secondary sources such as law reviews. Non-legal sources, such as academic journals, were also reviewed, with particular emphasis on topics such as university policies, tenure protections, academic freedom, as well as current events. Findings – The law regarding personal social media communications in a university setting is a series of complex and interconnected legal questions. Courts are still flushing out how free speech protections, personal social media use, and other relevant legal protections (e.g., employment law) may interface in a university-related case. Outcomes of cases are highly fact driven, and legal precedent is still being established. Originality/Value – This chapter offers a comprehensive examination of the topic of free speech and social media use in United States academia by (1) examining legal protections as applied to various stakeholders on a college campus and (2) analyzing the current legal landscape of social media cases involving universities.

Abstract

Purpose – The authors examine framing and narrativization in news coverage of health threats to assess variations in news discourse for known, emerging and novel health risks. Methodology/Approach – Using the analytical categories of known, emerging, and novel risks the authors discuss media analyses of anti-vaccination, antimicrobial resistance (AMR), and Covid-19. Findings – Known risks are framed within a biomedical discourse in which scientific evidence underpins public health guidelines, and following these directives prevent risk exposure while non-compliance is characterized as immoral and risky. News coverage of emerging risks highlights public health guidelines but fails to convey their importance as the risks seem too distant or abstract. Media coverage of novel risks is characterized by the ubiquity of uncertainty, which emerges as a “master frame” under which all incidents and events are subsumed. Stories about novel risks highlight the fluid and changing nature of scientific knowledge, which has the unintended effect of fueling uncertainty as studies and experts contradict each other. Originality/Value – This chapter introduces a new analytical framework for examining how media stories represent public health risks, along with previously unpublished analysis of media coverage about AMR and Covid-19. This chapter provides insight about the nature of risk discourses involving media, public health officials, activists, and citizens.

Part II: The Internet as Public Sphere

Abstract

Purpose – This chapter examines the role of payment platforms in the United States in sex censorship in which platforms have a pattern of denying financial services to people and businesses involved in publishing legal sexual content. It answers the following questions: what explains payment platforms’ regulation of lawful sexual content and what are the consequences? Methodology/Approach – Drawing from the platform governance literature, this chapter closely examines the corporate policies for PayPal and the credit card companies that prohibit certain types of sexual content and services. Findings – This chapter argues that payment platforms’ censorship of sexual expression is shaped by the distinctive nature of and market concentration within the online payment industry. Payment actors’ systematic campaign of sexual censorship disproportionately affects small businesses and individual operators in the sex and adult entertainment industries and amounts to “digital redlining,” a form of financial discrimination. Originality/Value – Payment providers’ role in regulating sex online has received considerably less scholarly attention than research on social media platforms. This gap in scholarship is notable as big payment actors have systematically denied services for about a decade relating to sexually oriented goods and services (see Blue, 2015a).

Abstract

Purpose – This chapter demonstrates the power that Google, Apple, Facebook, Amazon and Microsoft (or the “GAFAM”) exercise over platforms within society, highlights the alt-right’s use of GAFAM sites and services as a platform for hate, and examines GAFAM’s establishment and use of hate content moderation apparatuses to de-platform alt-right users and delete hate content. Approach – Drawing upon a political economy of communications approach, this chapter demonstrates GAFAM’s power in society. It also undertakes a reading of GAFAM “terms of service agreements” and “community guidelines” documents to identify GAFAM hate content moderation apparatuses. Findings – GAFAM are among the most powerful platforms in the world, and their content moderation apparatuses are empowered by the US government’s cyber-libertarian approach to Internet law and regulation. GAFAM are defining hate speech, deciding what’s to be done about it, and censoring it. Value – This chapter probes GAFAM’s hate content moderation apparatuses for Internet platforms, and shows how GAFAM enable and constrain the alt-right’s hate speech on their platforms. It also reflexively assesses the politics of empowering GAFAM to de-platform the alt-right.

Abstract

Purpose – In a digital environment, a simple accusation has the potential to permanently attach to a person’s identity. Our purpose here is to identify several types of accusations that persist in the internet environment: person to person accusations, media documented accusations, and accusations by the state. Approach – Using a typology of cases and legal analyses, the authors trace how accusations proliferate and persist across the internet and offer a set of social and legal explanations for the salience of public accusation online. Findings – The authors ultimately find that in contemporary society, the act of accusing increasingly replaces the desire or need for a fair and just outcome. The authors close by discussing implications for the accused and potential avenues for remedy. Originality – Our contribution bridges sociological and legal perspectives on the intersection of free speech, defamation, and digital media.

Part III: Regulating Speech Across Nations

Abstract

Purpose: This chapter examines how two basic rights, freedom of expression, and the right to equality based on one’s dignity, reputation, and honor, were balanced in a case involving a stand-up comedian and an adolescent suffering from Treacher Collins syndrome. Methodology/Approach: The case is contrasted with Jürgen Habermas’ concept of the public sphere and with the intrinsic and utilitarian values that Canadian courts have attributed to free speech. Findings: Because the case was dealt with first in a human rights tribunal and then by a court of appeal, a number of considerations were overlooked in court proceedings: how laughter occurs; the broadening of Ward’s audience and its consequences; and Ward’s publicity strategy. These aspects are explored here to give a more complete picture of the case beyond the court decisions. Originality/Value: In Canada, freedom of expression is usually dealt with ordinary courts. A whole new avenue for dealing with this right is human rights bodies and tribunals. Contesting free speech in the name of defamation is being replaced by rights entrenched in human rights charters, such as the right to equality based on the preservation of one’s dignity, reputation, and honor.

Abstract

Purpose – This chapter has three general purposes: to trace Canada’s hate speech laws from their policy inception to their current state; to identify the importance that media and mass communication have played in the creation and development of Canada’s hate speech laws; and to demonstrate the critical relationship that media has had to significant legal cases on hate speech. Methodology/Approach – This chapter historically maps the policy development of and legal challenges to Canada’s hate speech laws. It takes directed notice of the relationship of media and mass communication to the development and implementation of those laws. It engages with libertarian and egalitarian arguments on free speech throughout the chapter testing these ideas through an examination of the legal cases cited. Findings – Canadian legislators and courts have long grappled with the balancing of rights with respect to the issue of “hate speech.” Advances in mass communication technology have added intricate challenges to that legal balancing. Awareness of media’s allure to hatemongers and racial extremists and of media’s protean characteristics make regulation of its hateful content a continuous legal challenge. Canada’s greatest challenge yet to the regulation of hate speech will be its adaptive response to the growing phenomenon of online hate. Originality/Value – This chapter highlights the little recognized prescient statements made by the Cohen Committee about the allure of media and the dangers of its technological advancements in Canadian free speech debates. Providing a comprehensive survey of Canada’s “hate speech” laws, it recognizes the importance that advancements in mass communication have played in the creation and development of Canada’s “hate speech” laws.

Abstract

Purpose – This chapter aims to show how media law strongly contributed to shape in Hungary what has been pictured as a U-turn. This illiberal trend was subsequently strengthened during the Covid-19 pandemic. Methodology/Approach – It considers that law also constitutes and not only orders political and social relationships. Law, including media law, has been in Hungary one of the main factors of change or rather of political-social construction. This chapter therefore moves from the study of positive law and analyzes Hungarian media laws within the theoretical framework of illiberal democracy, drawing from contributions to political science and socio-legal studies. Findings – This chapter demonstrated that media laws have outlined in Hungary a centralized regulatory system with broad powers, which lacks political independence, therefore encouraging self-censorship and limiting freedom of expression and pluralism. These laws contributed to shape the illiberal U-turn occurred in the country before the pandemic, but the coronavirus offered the occasion to reinforce government powers, giving the leeway to rule with no or minimum scrutiny for an indefinite period and further limiting dissent. The analysis enabled to argue that neither the media regulation established during the past decade nor the laws adopted during the Covid-19 pandemic are compatible with a modern democracy. Originality/Value – Based on existing literature, little research has been conducted on the appearance and endurance of non-democratic regimes, and supposedly even less within the context of the coronavirus pandemic which started only a few months ago, compared to the contributions available on democratization processes and democratic consolidation.

Abstract

Purpose – Public debates about censorship laws largely focus on their desirability and the limits set on free speech. From a historical perspective, however, the logic and contradictions inherent in these laws’ implementation, as well as their evasion, also merit attention. This chapter places at the heart of its investigation the General Communist Notification (1932) in British India which prohibited specific kinds of Communist publications from import and circulation, even more so in a context of mass anti-colonial nationalism. Methodology/Approach – Using government and intelligence agencies’ archival records, intercepted documents of the Communist Party of India, legislative debates and memoirs, this chapter illustrates the censorship of Communist literature in India at two levels: one, it sketches a broad picture of the mode and extent of the censorship of Communist literature in late colonial India (c. 1925–1947). Two, by excavating debates and processes around the treatment to be accorded to books of two British Communist writers, John Strachey and R. P. Dutt, it reveals the constraints and dilemmas of censorship of Communist literature. While doing so, it brings both Indian and British voices to the fore. Findings – This investigation provides valuable insights into the operation of laws related to specific genres of publications, provides an assessment of the success of censorship measures, and highlights the repercussions of their failure. Originality/Value – By illustrating the limited success of censorship measures, as well as the dilemmas of censors and debates among them, this chapter urges for a more nuanced and multidimensional understanding of the operation of censorship, particularly in politically fraught contexts.

Index

Pages 185-190
Content available
Cover of Media and Law: Between Free Speech and Censorship
DOI
10.1108/S1521-6136202126
Publication date
2021-04-23
Book series
Sociology of Crime, Law and Deviance
Editors
Series copyright holder
Emerald Publishing Limited
ISBN
978-1-80071-730-5
eISBN
978-1-80071-729-9
Book series ISSN
1521-6136