Author: Kyle

Combatting Cyberstalking with Copyright Law: An Alternate Route for Redress

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JAYLEIN PIEKARSKI

This Comment explores the growing phenomenon of “copycat cyberstalking,” a form of stalking in which individuals obsessively mimic another’s social media content—including posts, poses, outfits, captions, and digital aesthetics—to the point of emotional distress and reputational harm. Given the limitations and inconsistencies of existing cyberstalking laws, which often fail to address nuanced and non-physical forms of digital harassment, this Comment proposes an innovative legal remedy: the application of copyright law. Through a detailed analysis of the first-of-its-kind case based in copyright, Gifford v. Sheil, this Comment argues that content creators can frame instances of cyberstalking as copyright infringement by utilizing doctrines such as the substantial similarity test. By applying copyright standards to curated digital expression, victims can pursue legal recourse even when cyberstalking statutes fall short. Ultimately, this Comment advocates for the recognition of user-generated content as protectable creative work and highlights the potential for copyright law to fill critical enforcement gaps in the digital age.

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Press Freedom’s History and Tradition

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RONNELL ANDERSEN JONES & SONJA R. WEST

Backward-looking, history-and-tradition analysis is gaining greater prominence at the U.S. Supreme Court. While the Court has not yet explicitly applied its history-and-tradition framework to press freedom questions, the methodology’s dominance across other areas, coupled with some urgent concerns about the scope of newsgatherer protections and some Justices’ interest in reconsidering long-established precedent, suggest that this application could be imminent. In anticipation of that moment, we set out to empirically map the Court’s engagement with the history and tradition of press freedom in its rhetoric over time. Our goals were to explore, both quantitatively and qualitatively, how the Court’s Justices have discussed historical and traditional views on press freedom and whether the intensified history-and-tradition analysis that now dominates the Roberts Court’s constitutional decisions is mirrored in its discussions of the press. What we found was deeply counterintuitive. The trend data show that while the Court once routinely commented on the Founders’ support for the press and the nation’s long history of press freedom, these references are now waning. That is, even as history-and-tradition analysis has proliferated in the Roberts Court’s recent decisions, references to these concepts in mentions of the press have plummeted. This paradox suggests that the Roberts Court may be discarding its longstanding positive historical narrative of press freedom just as it is elevating history and tradition as tools of constitutional interpretation.

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Chilling Ambiguity: Can Espionage Act Liability be Imposed for Reporting the News?

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DAVID SCHULZ & BRIAN O’NEILL

The Espionage Act, 18 U.S.C. § 793(d)–(e), makes it a crime for anyone without prior authorization to disclose “information relating to the national defense” if there is “reason to believe” that disclosure could harm the United States or aid a foreign government. This loosely worded prohibition can be read to subject government whistleblowers to imprisonment for disclosing “information relating to the national defense” to a journalist without authorization; it can also be read to jail journalists for reporting such information. For more than fifty years, the Act was used only to prosecute traitors and spies as Congress intended, but after 9/11, its broad language was repeatedly invoked to prosecute government employees who leaked information to the press. No appellate court has yet addressed the First Amendment’s limits on the government’s ability to punish the public disclosure of accurate, newsworthy information the Executive branch had classified to protect
national security.

Answering this critical question has become an issue of immediate concern with the return of Donald Trump to the White House. The first-ever use of the Espionage Act to indict the publisher of a classified leak (and not just the leaker) was brought during Trump’s first term in office, when Espionage Act charges were filed against WikiLeaks founder Julian Assange. But that case was resolved with a plea during the Biden administration, so the Act’s constitutional limits remain undetermined even as the new Trump administration makes chilling the press a governing priority and regularly invokes national security as justification for presidential action.

Identifying the First Amendment limits to the Espionage Act is complicated because it will require a court to resolve a clash of two fundamental values—protecting freedom of expression and protecting national security. This Essay outlines an approach to resolving this clash, drawn from procedures and standards developed by courts to adjudicate conflicts between freedom of expression and other fundamental values—personal reputation and privacy. It first reviews the scope of the Espionage Act, the absence of judicial precedent defining the First Amendment’s limit on the Act’s reach, and the impact of this ambiguity on journalists and their sources. It then considers standards and procedures developed to conform the common law of defamation and privacy to the First Amendment’s commands that should inform how the First Amendment limits Espionage Act liability when information of public concern is leaked to the press. These include: 1) the muscular gate-keeping role given to judges to screen out meritless claims; 2) requiring those seeking to punish a speaker to prove either a culpable state of mind or actual, speech-caused injury; 3) applying standards intended to balance the competing interests predictably and provide clarity to guide behavior; and 4) requiring courts to independently ensure that record evidence convincingly supports any sanction imposed on speech.

This Essay contends that identifying the constitutional constraints needed to prevent the Espionage Act from becoming a retaliatory tool to punish disclosures of government misconduct and abuse will require procedural solutions as much as substantive ones. The answer need not depend on courts inventing a new doctrine. It can come from familiar First Amendment practice developed in defamation and privacy cases and from the judiciary’s established role in policing secrecy claims in other contexts.

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Dignity and the Free Press

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ERIN C. CARROLL

As American institutions wither and die, those who believe in their importance must reflect and rebuild. One institution worthy of sustained attention is the free press. Divorced from government by design, the press can benefit from efforts to reinvigorate and reinvent it in ways that institutions more directly under the federal government’s thumb cannot. To best undertake these efforts, we need a richer understanding of why a free press is vital. Articulating the values that underlie the need for this institution is necessary not only to build the most robust free press, but also to best exercise our freedoms as Americans.

The conventional wisdom about why the United States needs a free press has remained stagnant for a quarter-millennium: the press is a bulwark of democracy. Perhaps because democracy is such a fundamental national value, press advocates have failed to look beyond it. We have failed to see that democracy does not exist in isolation. Rather, it operates in concert with other values, and its strength rises and falls along with them. The press can be a bulwark of an array of democracy-aligned values. A key one of these is human dignity.

The press promotes human dignity foremost by serving as a generator and distributor of information. But more specifically, it advances dignity through editorial practices that prioritize fairness, accountability, and recognition of fellow humans. It also promotes dignity by producing news about those who might otherwise be overlooked.

In trying to create a formidable free press, it is important to consider precisely how the press advances dignity and how it can do so better. In expanding our understanding of the press’s benefits (actual and potential), we better ensure a future in which the press—a key creator of community narratives, social meaning, and publics—upholds collective values.

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Media Ownership, Newsroom Independence, and President Trump’s War on the Press

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LILI LEVI

Media ownership is now both directly and indirectly at the center of the Trump Administration’s press-control strategy. With the deployment of censorship efforts and lawsuits aimed at press owners critical of the President, the regulatory activities of a Trump-aligned Federal Communications Commission (FCC), the grant of benefits to politically partisan, pro-Trump media owners, the defunding of public media, the adoption of multiple hurdles to independent newsgathering, and the involvement of the President in the joint venture to spin off an American TikTok, the Trump Administration has been systematically engaging in a multi-pronged scheme of press control by proxy, focused on ownership.

Today’s media ecosystem is complex, with news outlets reflecting a range of ownership patterns with varying characteristics, legal rules, and owner incentives. In theory, such a mix could generate a range of owner responses to government pressure. However, if the Administration strategically continues to tailor governmental sticks and carrots to the characteristics and vulnerabilities of the various forms of ownership—and particularly while permitting increased media consolidation—it is realistic to expect more capitulation than resistance from media owners in response.

Although there is no way to insulate the press completely from the threat of ownership-focused control, this Essay makes five recommendations to reduce the press function’s exposure to proxy censorship: (1) exacting scrutiny of proposed media mergers and acquisitions from the vantage point of their impact on concentration in the market for news production; (2) constraints on FCC Chairman Carr’s sweeping and politicized expansions of Commission intrusions into content; (3) rejection of proposed expansions of corporate boards’ fiduciary duties of oversight to news units; (4) a skeptical review of the statutory compliance of the new TikTok USDS Joint Venture LLC; and (5) development of funding models that would materially promote the work of journalistically-trained independent “evidence-based creators.”

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Jawbreaking and Counterboning

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BLAKE E. REID

FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.

Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak on speech intermediaries. The duty counteracts the risk of retaliation for intermediaries resisting unlawful threats with an equal or greater risk of future consequences for intermediaries knuckling under—such as the loss of a broadcast license. In turn, it proposes circumventing the political barriers that hamper most jawboning reforms by way of counterboning: bootstrapping the duty to jawbreak with warnings of future consequences under an extant statute such as the Communications Act. In doing so, it contemplates navigating the traps of jawboning law—including the jawboner’s (and the knuckler’s) dividend.

Finally, it considers the unexpected lessons of the Kimmel-Carr episode for debates over jawboning and Internet intermediaries. It highlights how the exceptional treatment of broadcasters under the Communications Act’s public interest standard and Internet intermediaries under Section 230 can leave both vulnerable to jawboning. And it considers what broadcast and Internet exceptionalism might have to teach each other about synthesizing jawbreaking.

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A ‘Slippery Business’: The Fact-Law Distinction in Authorship & the Echo of Loper Bright

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NADAV BATTAT

This Note explores whether authorship in copyright law constitutes a question of fact, law, or a mixed inquiry. In the wake of rapid developments in generative artificial intelligence and a sharp doctrinal shift in administrative law, this inquiry has become increasingly consequential. The classification determines not only who decides the issue—judge, jury, or agency—but also whether courts must defer to the Copyright Office’s determinations. In the post-Loper Bright v. Raimondo landscape, where Chevron deference has been eliminated, these questions take on new procedural and doctrinal weight.

The Note argues that authorship determinations should be treated as mixed questions of law and fact predominated by law. This framework allows courts to consider factual underpinnings concerning the degree of human contribution while reserving the ultimate question of law for judicial resolution. Such an approach promotes accuracy in adjudication, flexibility in application, and consistency in doctrine—ensuring that authorship, a foundational yet slippery concept, remains subject to coherent judicial oversight as generative technologies continue to reshape creative processes. Drawing on fair use, originality, and analogues from
patent law, this approach situates the authorship issue within a tradition of hybrid typologies in intellectual property.

Allen v. Perlmutter, a pending case involving the denial of copyright protection for an AI-assisted image, may serve as the progenitor of a new interpretive lineage. It forces courts to confront not only the factual complexity of human input and the unsettled legal boundaries of authorship in the age of AI, but also the threshold question of how authorship should be classified—as a question of fact, law, or both.

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How to Manage the Wolf in the Fold: A Government-Focused Approach to Regulatory Capture in the Platform Economy Comparing California with British Columbia

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SUSAN BISOM-RAPP & URWANA COIQUAUD

Scholarly work on regulatory capture in the platform economy accounts for the political role and power wielded by app-based firms, which aim to reform the existing legal environment to favor their low-cost labor business models. This Article adds to the literature by shifting the focus to government actors, the role of narrative in communicating with the public, and institutional constraints which may hamper the government’s ability to provide a cogent rationale for opposing or implementing legal change. The Article’s central contribution is underscoring the government’s role in facilitating or preventing regulatory capture. To that end, it illuminates the state’s capacity for de-standardizing work—making work more precarious and insecure for workers—or preventing the degradation of workers and working conditions. The Article compares two North American jurisdictions considered pro-worker—California (US) and British Columbia (CA) – and examines government reactions to the regulatory challenges posed by app-based transportation and delivery firms.

The authors first introduce a typology of government functions and tools that can either stabilize or weaken labor standards. Two theoretical lenses then assist in interrogating government actions and regulatory outcomes: 1) discursive institutionalism, which highlights the role and power of ideas and institutions in public policy creation; and 2) decent work, the human rights concept emphasizing, among other things, the promotion of fair wages, safe and healthy working conditions, and the right to organize and bargain collectively. Despite confronting similar regulatory challenges, the study discerns significant differences in government actions, communication, and regulatory outcomes in California and British Columbia. Regarding app-based workers, the latter is moving towards recognizing decent work while the former drifts away from it. These findings underscore the government’s pivotal role in protecting or undermining decent work, an important insight as platform firms test the resilience of existing labor standards around the world.

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Requiring Written Bail Determinations

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MICHAEL L. SMITH

Many states’ laws governing bail and pretrial release give the impression that courts think through a myriad of factors when deciding whether to set bail. But things often don’t work out this way in practice. Judicial officers setting bail carry out assembly-line-style, truncated hearings which often result in the imposition of bail in accordance with predetermined offense-based schedules. As a result, many defendants are ordered incarcerated pending further proceedings solely because they are unable to pay. Many of these defendants then plead guilty out of a desire to avoid remaining in jail pending trial.

This Article makes a straightforward proposal: written justifications should be required for all bail and pretrial release rulings that do not order defendants released on their own recognizance. By forcing courts to commit to writing the reasons behind their rulings, this reform pushes them to engage with the relevant laws governing bail and the circumstances of the defendants before them. It also increases the legitimacy of a system that badly needs it by creating a record of explanations for pretrial release determinations and acknowledging the need to spend time on these serious proceedings.

Critics are likely to paint this proposal as hopelessly impractical. Courts address millions of criminal cases each year, and requiring written rulings on pretrial release in many of them is a substantial burden. But this is not a problem with the proposal. Instead, this objection derives its force from a system that prosecutes more people than it possibly can while complying with minimal standards of due process and reasoned justifications. Requiring written bail determinations simply surfaces this defect. But, in doing so, the reform acts to oppose existing incentives that perpetuate overenforcement and oppressive prosecution. Alongside alternate reform measures, requiring written bail justifications is a step toward aligning pretrial release practices with the law on the books, and reducing the harms it causes to defendants, their families, and the rest of society.

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Probabilistic Tort Law: Extending the Loss-of-Chance Doctrine’s Partial-Damages Framework to All Tort Cases (and Beyond)

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MICHAEL PRESSMAN

Tort law’s loss-of-chance doctrine (“LOCD”) is employed in many jurisdictions to resolve a problem arising in certain medical malpractice cases. In the paradigmatic case, the patient presents with a greater-than-50% chance of dying from a condition, the doctor’s negligence increases that chance, and the patient dies. Traditionally, the plaintiff would never recover because he cannot show by a preponderance that he would have survived absent the negligence. The LOCD, however, allows for partial damages reflecting the portion of the risk attributable to the negligence. As most commentators agree, the LOCD furthers both fairness and efficiency, and all jurisdictions should employ it.

But this Article argues that we should go much further. The rationales underlying the LOCD apply not only in the typical LOCD context, but in all tort cases. Accordingly, this Article advocates for two reforms: first, employing the LOCD not only in medical malpractice cases that call for its use, but also in cases raising relevantly similar issues in any other area of tort (most notably, in toxic torts and products liability); and second, employing LOCD-like partial damages to take into account underlying risk even in cases in which the underlying risk is not large enough to create the insurmountable hurdle. The first reform increases recoveries (awarding partial damages instead of no damages); the second decreases recoveries (awarding partial damages instead of full damages).

These proposals are important for three reasons: First: Both further both fairness and efficiency, and their practical effects are significant for parties affected by them. Second: Although the general rationale for the LOCD is clear, and despite commentators agreeing that it should be limited to typical LOCD cases, there is no plausible account of (or consensus on) why it should be limited to these cases—which is why many courts have rejected the LOCD. This Article solves this problem: Not only do we not need to limit the LOCD, but we should not. Accordingly, this Article provides a broad foundational account of the LOCD that, unlike past accounts, is plausible—thus also providing reasons for courts to employ it even in typical LOCD cases. Third: While the Article’s reforms constitute a crucial step for tort doctrine in taking chance seriously, they will also serve as a blueprint for analogous reforms in other areas of the law.

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