Sage publishes updated Encyclopedia of Journalism

In March, Sage published the second edition of The Enyclopedia of Journalism (2022).

I was privileged to contribute updated articles on Copyright (previous edition draft) and the Freedom of Information Act (FOIA) (previous edition draft).

A lot has changed since the first edition more than a decade ago. I am grateful for the editorial leadership of Professor Gregory A. Borchard at the University of Nevada, Las Vegas, for his direction and feedback on redrafting the content for the new edition.

Here is the description of the project from Sage.

Journalism permeates our lives and shapes our thoughts in ways that we have long taken for granted. Whether it is National Public Radio in the morning or the lead story on the Today show, the morning newspaper headlines, up-to-the-minute Internet news, grocery store tabloids, Time magazine in our mailbox, or the nightly news on television, journalism pervades our lives. The Encyclopedia of Journalism covers all significant dimensions of journalism, such as print, broadcast, and Internet journalism; U.S. and international perspectives; and history, technology, legal issues and court cases, ownership, and economics. The encyclopedia will consist of approximately 500 signed entries from scholars, experts, and journalists, under the direction of lead editor Gregory Borchard of University of Nevada, Las Vegas.

Here is the first paragraph of Copyright.

Copyright is a legal protection of expressions that are fixed in tangible media. Copyright describes, for example, an author’s right to reproduce a book manuscript, an artist’s right to duplicate his painting, or a musician’s right to perform an original score. Copyright is part of a family of legal interests loosely termed intellectual property, which also includes trademarks, patents, and trade secrets. This entry examines the origins of copyright as well as related theory and criticism. The entry also discusses copyright law, the fair use doctrine, and legal issues connected to copyright law. The entry concludes with a discussion of copyright within the context of journalism.

And here is the first paragraph of the Freedom of Information Act (FOIA).

The Freedom of Information Act (FOIA) is an information disclosure statute that provides the principal means of access to records of the executive branch of the United States federal government. The FOIA, codified at 5 U.S.C. section 552, was enacted in 1966 and has been amended since, significantly by the Electronic FOIA Amendments of 1996 and the OPEN Government Act of 2007. This entry discusses the history of the FOIA, its use today by journalists and others, variations in its interpretation, its influence on other governments, and related laws in the United States.

Kenyan presidential election has Nairobi on edge

UPDATE, Aug. 19: William Ruto won the Kenya presidential election.  Read more at NPR, Aug. 15.

Kenya will vote for a new president next month in a general election laced with ethnic tensions, which has people in Nairobi on edge.

For two five-year terms, incumbent President Uhuru Kenyatta has labored to convince Kenyans that his agenda has generated economic opportunity and quelled corruption. Most of that time he has been effective, at least at the convincing, as evidenced by approval ratings exceeding 70%. But those ratings have occasionally plunged upon allegations that shook the moral high ground.

Perhaps most damning, Kenyatta faced charges in the International Criminal Court alleging complicity in violence, including the burning to death of 28 people inside a church, related to a previous election cycle. In 2014, the court dismissed the indictment for insufficient evidence. Frustrated prosecutors alleged witness tampering and intimidation.

Now Kenyatta is term limited. His exit from power has broader significance because he represents a family dynasty that has maintained control of Kenyan politics since 1963 independence. A rivalry with the Odinga family has lent Kenyatta dominance a gloss of competition, and sometimes a run for its money. But perennial presidential challenger Raila Odinga has never quite made the grade, and the seesawing fortunes of the families come off to more numerous outsiders as oligarchic.

Threads of ethnic tension underlie the contest, too.  The Kenyatta family is part of Kenya's plurality ethnic group, the Kikuyu, a Bantu people constituting about a fifth of the population. Fairly or unfairly, Kenyatta is perceived as having allocated political power to aggrandize Kikuyu hegemony.

But neither of the two leading candidates for the presidency is Kikuyu. One candidate is the familiar Odinga, who hails from the Luo ethnic group, a Nilotic people, like the well known Maasai. Traveling in the Maasai Mara in June, anecdotally, I found people more prone than their Nairobi fellows to view the presidential race through an ethnic prism. Or maybe they were just more willing to say so.

Me with a Maasai mate in June
(C) Alison 2022, licensed exclusively to RJ Peltz-Steele

Though they are longtime rivals, Kenyatta has endorsed Odinga. Further lending support to the feel of oligarchy, the two share a history of occasional accusations of financial improprieties.  Odinga has chosen a Kikuyu running mate with a history similarly suggestive of insider status.

The other contender is the incumbent deputy president, William Ruto. Ruto, who belongs to the Kalenjin ethnic group, also a Nilotic people, was charged in The Hague over election violence, alongside Kenyatta, and saw his charges dismissed likewise in 2016. Ruto also chose a Kikuyu running mate; Martha "Iron Lady" Karua would be the nation's first female deputy president.

That both candidates chose Kikuyu running mates shows the priority of appealing to an ethnic plurality that might fear the loss of long familiar station. Odinga and Ruto have traded the lead in polls, but either way, it is overwhelmingly likely that the highest office in Kenya will, historically, slip out of Kikuyu hands.

With a history of violence following elections—besides the '07-08 turmoil that precipitated ICC investigation, Kenyatta's narrow reelection margin five years ago led to civil unrest and a dramatic court challenge—people in Nairobi are on edge.  I was repeatedly warned to stay away from any assembly that might even morph into a political rally. And I found some city dwellers flatly unwilling to venture out after dark.

All that said, I have to admit, what first caused me to take an interest in the Kenyan presidential election is none of the above. Rather, it was a Ruto billboard that I saw in many places around Nairobi. The billboard boasts the curious tagline, "EVERY HUSTLE MATTERS," or, sometimes, "EVERY HUSTLE COUNTS."

CC BY-NC-SA 4.0 RJ Peltz-Steele

I laughed out loud when I first saw it. I asked a taxi driver what it meant, and he told me matter-of-factly that it meant Ruto promises plenty of jobs, "hustles," for people: important in an economy in which a person might derive income from many and various part-time gigs.

A more trusted Kenyan source later told me, yes, Kenyan English does recognize the negative connotation of the word "hustle." And Ruto did indeed take some heat for his unusual choice of words in an election in which anti-corruption figures prominently.

Maybe in the end, the hustle will work for Ruto. After two terms of Uhuru Kenyatta leadership and a half-century of dynastic family control, Kenya struck me as mired in a state of development ill-befitting its reputation as an East Africa leader and below par relative to neighboring Uganda and Tanzania. Perhaps for voters, it's the economy, stupid.

Judge delays decision again on Mass. right to repair, cites need to study SCOTUS climate change ruling

pix4free

Last week, in West Virginia v. Environmental Protection Agency, the U.S. Supreme Court dealt a major blow to federal regulators on the climate change front, and the case has stalled, again, release of the trial court decision over the right-to-repair law in Massachusetts.

First, a word on West Virginia, in which the Court struck down climate change-combative regulations for being born of a breadth not sufficiently specifically authorized by Congress. Others will comment more ably than I on the constitutional law of it all, but from where I sit, the case was correctly decided. Before you throw your rotten tomatoes at me for composting, at least absorb my two cents on the matter: 

We have too long been under the rule of administrative fiat in the United States, rather than democratic lawmaking, because our dysfunctional Congress long ago abdicated its role as a co-equal branch of government. Early in the 20th century, the Court unwisely allowed the non-delegation doctrine to slip away, and with it went the checks and balances of the constitutional separation of powers itself. So we're overdue for a correction.

You don't want to hear it from me, but the same problem pertains in the Roe/Dobbs debacle, where the administrative fiats on privacy have been coming from the Court rather than the administrative state, but certainly not from Congress: same difference. People, especially people ill schooled in the separation of powers—wherefore the sorry state of K12?—look to monolithic government for answers to their problems. They don't much care which public office provides the answer. So they fail to distinguish a Supreme Court decision—West Virginia or Dobbs—that says not our job from one that says simply not. Protestors picketing the Supreme Court building in recent weeks were on the wrong side of the street.

Abdication is a win-win for lawmakers, who can rake in the dough from corporations for the small price of doing nothing while blaming other branches of government for failing to offer a fix. Lawmakers sat on their hands on privacy and women's rights for decades in the wake of Griswold and Roe, content to let the Court struggle to map fine lines. Now they pantomime outrage and aspersion when Roe goes away and there is no statutory civil rights framework to replace it, nor even a framework to protect interstate travel rights, which is well within congressional authority.

Anyway, the angle on West Virginia that interests me is that on July 1, the U.S. District Judge Douglas P. Woodlock again delayed his decision in automakers' challenge to the Massachusetts right-to-repair initiative, saying that he would have to study the impact, if any, of West Virginia on his rationale. (E.g., Repair Driven News.)

Issuance of the decision in the case has been delayed time and again this calendar year, and the case has spurred occasional fireworks. Chris Villani for Law 360 wrote in February how "[a]n exasperated federal judge said ... he was close to a verdict in a suit challenging Massachusetts' revised 'right to repair' law, yet he pressed attorneys for a group of manufacturers about why they didn't tell him that new Subaru and Kia vehicles complied with rules they claimed are impossible to follow."

It was not clear, later, whether Subaru and Kia had actually complied, or just turned off the offending telematic features in new cars to be sold in Massachusetts. Turning off an otherwise functional mechanism does not, Massachusetts AG Maura Healey opined, and I agree, comply with the consumer data access law.

Though the omission that aggravated the judge was explainable, the incident is demonstrative nonetheless of automakers' obfuscating foot-dragging in their conduct of the case overall. They threw every kitchen-sink theory and procedural roadblock at the Massachusetts law, because every day of noncompliance is money in the bank, never mind the merits, nor the defense cost to taxpayers.

Automakers' problem is less with telematics regulation and more with being regulated state by state, rather than by federal standards. Federal regulation, rather than state regulation, has two powerful advantages for industry. First, federal regulations are universal, rather than 50+ in number, which vastly reduces compliance costs. More efficiency in compliance costs is good for consumers, too. So that's fair.

Second, federal regulations come from a grinding rule-making process that is almost irretrievably contaminated by the mostly lawful if deeply lamentable corruption of the industry-state complex. So manufacturers can lobby their way free of meaningful burdens that would benefit consumers and protect social and economic rights. Less fair.

It is not clear why Judge Woodlock thinks that West Virginia might affect his ruling. I might be able to say if I followed the Massachusetts case more closely. Absent a study, my guess is that the issue has to do with preemption. One of the automakers' kitchen-sink challenges alleged that Massachusetts could not regulate telematics because federal regulation of the auto industry impliedly preempts state right-to-repair regulation. If the judge thought that the vitality of that theory depended on the breadth of the federal regulations, and the permissible breadth of federal regulations, when ambiguous, is necessarily narrowed by West Virginia, then maybe it's less likely that the federal regulations can be said impliedly to preclude state regulation.

I'm now piling supposition upon supposition, but if I'm right, the likelihood is that the trial court was going to rule in favor of industry, and it's possible but unlikely that West Virginia would change that. I put money on industry on this one back in the winter, too, in part because I supposed that the judge's exasperation was evoked by a seeming deception on the part of the soon-to-be-announced prevailing side, and in part because I'm a pessimist. Or, I like to think, a realist.

My will for public policy, though, if not my bet, is on the side of AG Healey. Previously, I've written favorably about right to repair as a bulwark of consumer protection, and I support the Massachusetts initiative.

The Massachusetts case is Alliance for Automotive Innovation v. Healey (D. Mass. filed Nov. 20, 2020).

U.S. footballers celebrate equal pay settlement

Alex Morgan
(Jamie Smed CC BY 2.0 via Wikimedia Commons)

I was elated in April to hear of a proposed $24m settlement in the equal pay dispute brought by U.S. Women's Soccer.

I wrote about the matter in April 2021 and May 2020. There were ups and downs, and, frankly, things were not looking good for the plaintiffs.

However, the case is a lesson in persistence and the value of a public relations campaign running alongside a litigation. U.S. Soccer had the upper hand in the court of law, but was taking it on the chin in court of public opinion.

The case is Morgan v. U.S. Soccer Federation (C.D. Cal. filed Mar. 8, 2019). A June 22 motion seeks court approval of the class action settlement. Named plaintiff Alex Morgan talked to MSNBC about the settlement last week.

UPDATE, July 4, at 1934 EDT: Watch today's CONCACAF match and tell me Alex Morgan should not be US Soccer's highest paid player!

Fourth of July, or day 131 of war in Ukraine

As we celebrate Fourth of July in the United States, let's remember that a war for freedom and autonomy carries on in Ukraine. I photographed this vista of the Dnieper in Kyiv in peaceful times, on June 12, 2013, eight months before the Euro-Maidan Revolution and subsequent invasion of Crimea.  (RJ Peltz-Steele CC BY-NC-SA 4.0.)

Descendants of slaves imaged in daguerreotypes may sue Harvard for emotional distress, high court rules

Harvard Yard
(Daderot. CC BY-SA 3.0 via Wikimedia Commons)

The Lanier family, whose enslaved ancestors were stripped and forcibly photographed in 1850, may allege reckless infliction of emotional distress against Harvard, the Massachusetts Supreme Judicial Court ruled in June.

I wrote about this case and its heated oral argument in November, with links to sources elucidating the context. The court's decision to allow an emotional distress claim is momentous, even while the court dismissed claims in property law and tortious conversion.

Read more about the latest disposition at The Harvard Crimson and CBS News.

The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (Mass. June 23, 2022). Justice Scott Kafker wrote the opinion of the court.

Chief Justice Kimberly S. Budd wrote separately in concurrence "to emphasize that the alleged conduct of the defendants (collectively, Harvard) here clearly transgressed moral standards broadly adopted by archival institutions."

Justice Elspeth B. Cypher wrote an intriguing additional concurrence in which she proposed that the plaintiffs should be afforded a novel common law cause of action, besides infliction of emotional distress, upon the unprecedented facts of the instant case.

Miami Beach looks like a police state; Ocean Avenue shootings happened anyway

In March, I visited Miami Beach and found it to have the feel of a police state.

Uvalde and the shortly subsequent widely reported shootings happened while I was away from the United States, which was something of a mercy. I didn't have to live through the immediate trauma of it all happening again. But thinking about what happened and what could or should be done, including John Oliver's apt skepticism of the perennial calls to harden school security, caused me to remember my experience in March.

I've always liked Miami Beach. The art deco aesthetic combines with Latin-flavored food, drink, and entertainment and incomparable people watching to provide a unique and memorable experience every time. I had not been there, though, in many years, and I was anxious to see how it emerged from the pandemic.

I had a good time revisiting old haunts, but I found the nighttime police presence downright oppressive. Countless cop cars sat with their blue and red lights illuminated all along Ocean Drive and in Lummus Park. Bright spotlights made artificial daylight in the park and on the beach inside the dunes; paths to the ocean were closed. Surveillance cameras were everywhere, perched upon lamppost after lamppost. It was a police state on steroids. (All photos RJ Peltz-Steele CC BY-NC-SA 4.0.)

I could not imagine what had happened that precipitated such security, and I was inclined to be critical. Then, shortly after I returned home and despite what I'd witnessed, news broke of five separate shootings during the main week of spring break. Authorities declared a state of emergency and imposed a midnight curfew to quell further violence, NPR reported.

I have no great insights as to what is going on at Miami Beach. I can only say that one of my favorite places, a vacation destination in the United States, looks more like a police state than actual police states I've visited abroad. And that didn't avert five shootings.

I don't have the answers, but making more places look like what Miami Beach has become doesn't seem to be one.

UMass Law Federalist Society talks speech, SCOTUS

Regular blog readers will soon recognize that I am playing catch-up, sharing items that I stockpiled for the better part of the spring semester.

Indeed, I was overwhelmed this spring by a number of great opportunities to speak, teach, learn, and share, all unplanned when the calendar turned to 2022. The blog had to take a back seat.

This overdue thanks harkens back to winter, circa Valentine's Day.  A very fun thing I did was speak to my own law school's student chapter of the Federalist Society about cases with free speech implications—and some related stuff that interests me—in the 2021-2022 term of the U.S. Supreme Court. These are the cases I chose on which to focus our attention (with links here to SCOTUSblog).

• Access: Project Veritas Action Fund v. Rollins,  cert. denied. (U.S. Nov. 22, 2021) (1st Cir. having struck Mass. wiretap statute as applied).
  
• Voir dire: U.S. v. Tsarnaev (U.S. Mar. 4, 2022) (reversing vacatur of death sentence in re pretrial publicity).
• Speech/retaliation: Houston Cmty. Coll. Sys. v. Wilson (U.S. Mar. 24, 2022) (allowing First Amendment claim for verbal censure of public board member by board).
• Forum/gov't speech & establishment: Shurtleff v. City of Boston (U.S. May 2, 2022) (faulting city for refusal to fly ecumenical flag).
• Campaign finance: FEC v. Ted Cruz for Senate (U.S. May 16, 2022) (striking limit on candidate's ability to repay himself for loan to campaign).
• Bivens: Egbert v. Boule (U.S. June 8, 2022) (refusing to recognize implied constitutional causes of action for Fourth Amendment excessive force and First Amendment retaliation in context of immigration enforcement at border).
• Religious exercise and establishment: Kennedy v. Bremerton Sch. Dist. (U.S. June 27, 2022) (siding with high school football coach who prayed on field).

We furthermore talked and speculated about "the actual malice question" raised by Palin v. New York Times (e.g., NPR), a pet favorite topic of mine at the intersection of tort law and free speech.

The students offered insightful questions and commentary. I am grateful to them for lending me a soapbox.

Good riddance, covid immigration testing

I took this photo in Swansea, Mass., back in January 2022 (CC BY-NC-SA 4.0 RJ Peltz-Steele).

The sign well summed up how I was feeling about the chaotic guidance coming from the federal government at the time.

I never posted the photo, but figured I'd pull it out now to celebrate the dropping of the test requirement for immigration.

Of course, I now have about $300 worth of unused tele-medicine test kits I no longer need. Incidentally, apparently, my pharmacy insurer is not obligated to reimburse me for those, despite the President's promises. Promises, promises, Joe. But that's another story.

Museveni still holds reins in Uganda after 35 years, rebuffs allegations of human rights abuses

At age 77, Yoweri Museveni maintains his grip on power in Uganda and yesterday rebuffed criticism by Human Rights Watch.

In 2016, I presented a work-in-progress research paper on history and human rights in Uganda at a regional law-and-society conference at the University of Cape Town, South Africa. I never published the paper; it's a project that I back-burnered and have yearned to return to. At that time, I was nervous about the presentation, because I had never actually been to Uganda; only read about it. There were academics from Uganda in the audience. I was relieved afterward when they said I got it right; I hoped they weren't just being nice.

The impression left on me by my research was that Uganda was, sadly, kind of a backward place. Museveni had, and has, held the presidency since 1986, not long after the Idi Amin regime collapsed. (If you haven't seen The Last King of Scotland (2006), watch it now.)  Museveni is one of those leaders who wins reelection by just too large a margin, and laws have to be changed to allow him to run again. One can't help but lament that Uganda's story is no more than a series of authoritarian regimes exploiting people and resources since the British brought the political entity into existence in the 19th century.

Selfie at a roadside fruit-and-veg stand in Fort Portal, Uganda
CC BY-NC-SA 4.0 RJ Peltz-Steele

So winging into Entebbe in June, I expected to find in Uganda a bleak economic picture: a dilapidated infrastructure built on empty promises and crushed by poverty—maybe like the development-run-out-of-gas picture I found, literally, in Harare in 2020, just before the pandemic savaged what sanctions had not.

I was surprised, then, not to find that at all. To the contrary, there was ample evidence of economic prosperity in the tile-roofed residential and commercial buildings that filled the terraced hills between Entebbe and Kampala. I found a reasonably well outfitted capital in Kampala. The streets were no worse than the dirt-guttered throughways I had navigated in Nairobi. There were decent restaurants; I found a good gym. Subsequently, traveling in the countryside, sure, I saw plenty of poverty and subsistence living. But the picture was no more bleak than supposedly-more-faithfully democratic Kenya with its nearly triple the GDP.

Museveni overlooks street traffic in Kabale, in the Western Region of Uganda.
CC BY-NC-SA 4.0 RJ Peltz-Steele

Museveni-for-President posters are plastered everywhere, from the city to the villages. It's good to be king. But the gentle face that looks out from the posters harbors grim secrets.

What attracted me to research on Uganda in the first place was having learned of the terrifying plight of the LGBTQ population there. In the 2010s, Massachusetts pastor and one-time gubernatorial candidate Scott Lively traveled to Uganda to warn lawmakers of a homosexual menace—practically the same cabal that waged World War II against the world through the secretly homosexual leadership of the Nazi Party, as Lively had recounted in his 1995 book, The Pink Swastika. 

What influence Lively had on the Ugandan Parliament is as unknown as why he had any at all, but the Parliament subsequently enacted the infamous 2014 Anti-Homosexuality Act, which criminalized same-sex relations on pain of life imprisonment, thanks to late amendment, rather than the death penalty, as legislators had first proposed.

The law in Uganda was enjoined by the courts, but it was never the law that was really the problem. The mentality that the law represented justified a regime of brutal abuse and oppression of the gay community, including murder, whether at the hands of public authorities or while authorities stood idle. As a Christian, a Massachusetts scholar, and an Africaphile in comparative law, I was aghast at what Lively seemed to have wrought—though it must be said, for his part, that Lively never countenanced violence.

You can learn more about the matter from many sources, including what is probably my all-time number-one-favorite documentary film, Call Me Kuchu (2012); human rights activist Pepe Julian Onziema's part 1 and part 2 appearances on Last Week Tonight with John Oliver (2014); and documents in the unsuccessful U.S. federal lawsuit, Sexual Minorities Uganda (SMUG) v. Lively (1st Cir. 2018) (at the Center for Constitutional Rights, though don't misread CCR's rosy spin to misunderstand: Lively prevailed, just not as much as he wanted to).

This particular background certainly did nothing to raise my expectations for Uganda. Happily, though, I found in Uganda nothing like the senselessness I had read about. For the most part, I met happy, hard-working people. I found observance of faith, Catholic, Protestant, and Muslim, no different from other parts of East Africa. I saw nothing like a dogmatic mob stirred to feverish rage, like I had seen in a video of a Lively public appearance.

The fault is mine. I gave into stereotypes, because it was easy to generalize "backward" from Uganda's democratic deficit. But that deficit is the aftermath of colonialism, corruption, and the related ills that afflict so much of Africa, not an ailment of ordinary people. I failed to consider that generalizing from the crowd of believers in Lively's audience is about as fair to Uganda as assuming that the January 6 rioters, pictured relentlessly on TV, are representative of all Americans.

Museveni's and other political posters adorn a chai shop in a rural village of the Kabale District.
CC BY-NC-SA 4.0 RJ Peltz-Steele

Yesterday, according to the Uganda Monitor, at a Makerere University law school program on human rights accountability, Human Rights Watch CEO Kenneth Roth confronted Museveni with a report (this one, I assume) detailing unlawful detention and horrific physical abuses of civilians by Ugandan security forces. Roth described the president's dismissive response: "The President said Africa has lived through colonialism, it has lived through slavery, and it has lived through various exploitations by Europeans. He overthrew Idi Amin. Don't talk to him about human rights."

The HRW report doesn't even mention the LGBTQ community. It seems that official disregard for human rights is not so narrow a problem. Anyone who doesn't toe the line with the regime is at risk. 

I loved Uganda. It disappointed only my foolish suspicion that it might be a place beyond redemption. No place is. Certainly no people are.

Ugandans deserve better.