Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, November 22, 2022

Norton on Distrust, Negative First Amendment Theory, and the Regulation of Lies

Helen L. Norton, University of Colorado Law School, has published Distrust, Negative First Amendment Theory, and the Regulation of Lies as part of the Knight First Amendment Institute (Oct. 19, 2022). Here is the abstract.

This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable. In my view, we engage in the principled application of negative theory when we invoke it in (the many) settings where the government may be self-interested, intolerant, or clumsy (if not incompetent, as can be the case where it draws malleable lines absent adequate information or expertise). Conversely, the government warrants greater trust in settings where its discretion is limited, where we don’t see evidence of its self-interested or intolerant motive, or where our experience leaves us even more distrustful of powerful and unrestrained private actors (since distrust is not only an inductive concept, but also a comparative concept). This essay examines when and how negative theory valuably guides and constrains the government’s choice of regulatory target (like lies that inflict certain harms) and regulatory tool (like the content-neutral regulation of conditions that exacerbate lies’ power and spread), and also when and how negative theory warrants guardrails of its own to prevent the counterproductive inaction that often accompanies unbounded distrust. Our assessments of the government’s motivations and competence are key to when negative theory does (or should do) more or less First Amendment work. To this end, I urge that we take care to explain when and why we fear some government actors more than others, and when and why we fear the government more than private actors (and vice versa). More specifically, the principled application of negative theory does not pretend that hard Free Speech Clause problems are easy by minimizing the harms of regulated lies nor by exaggerating the effectiveness of counterspeech in preventing those harms. And the principled application of negative theory identifies specific triggers for distrust (like evidence of the government’s untrustworthy motives, its incompetence, its unfair surprise, or its unbounded discretion)—and recognizes that negative theory should carry less force when those triggers are absent.

Download the essay from SSRN at the link.

November 22, 2022 | Permalink

Monday, November 21, 2022

Moffat on The Free Exercise of Copyright Behind Bars @vrmdenver @WLULawReview

Viva Moffat, University of Denver Sturm College of Law, is publishing The Free Exercise of Copyright Behind Bars in the Washington and Lee Law Review. Here is the abstract.

Incarcerated people produce vast amounts of creative and expressive work – from paintings and sculptures to essays, novels, music, and NFTs – but they are rarely described as artists and their work is often not described as 'art'. Incarcerated people also do not regularly take advantage of copyright law, the primary form of protection for creative works, but they should. Copyright provides a strong set of rights that combines strains of free expression values with property rights elements. Copyright confers dignitary and expressive benefits, and for some creators, financial rewards. As such, copyright can be a tool to help incarcerated people improve their lives, both while they are in prison, and after they are released. In the prison context, at least, copyright should be thought of as akin to a civil right and, understood in this way, it can be a part of the movement to reform the U.S. carceral system, empowering those who create. Moreover, because copyright is a right in intangibles, there is no reason that incarcerated people cannot or should not advance and vindicate their copyright interests just as they would if they were not in prison. In other words, copyright behind bars should not operate any differently than copyright in the free world. This article first describes the enormous range of artistic work created by incarcerated people, as well as the prison system’s regular attempts to deter and suppress such work. The article then explains both how copyright law protects virtually all of those works, and why copyright is valuable to incarcerated people and should become part of the carceral reform project. Finally, the article argues that there are no good reasons for limiting or impinging on the exercise of copyright by those who are in prison, or on their ability to create, disseminate, and profit from their expressive and artistic works, just as people in the free world do.

Download the article from SSRN at the link.

November 21, 2022 | Permalink

Tuesday, November 15, 2022

Whittington on What Professors Can Say in Public: Extramural Speech and the First Amendment @kewhittington

Keith E. Whittington, Department of Political Science, has published What Can Professors Say in Public? Extramural Speech and the First Amendment. Here is the abstract.

Since the early twentieth century, academics have urged universities to recognize robust protections for the freedom of professors to speak in public on matters of political, social, and economic controversy, so-called “extramural speech.” The U.S. Supreme Court eventually recognized First Amendment protections for government employees, including state university professors, who express themselves about matters of public concern. The Court has indicated that the state should be especially solicitous of the speech of government employees in an academic context, but it has not adequately elaborated on the nature of those protections and how courts and government employers should assess the state’s interests relative to the extramural speech of professors employed at public universities. This article describes the state of the existing principles and doctrine surrounding extramural speech and examines the factors that private and public universities can reasonably take into consideration when responding to such speech – and what rationales for suppressing such speech or sanctioning faculty for engaging in such speech are inappropriate. Controversies surrounding the public speech of university faculty have only become more common and more intense in recent years, and both public and private universities need to be more self-conscious about the risk of stifling the intellectual environment of universities and chilling unpopular speech when responding to such controversies. If First Amendment values are particularly weighty in the context of the marketplace of ideas on university campuses, then many of the rationales for disciplining government employees for controversial speech that may make sense in some governmental workplaces should be rejected if applied in the university context.

Download the article from SSRN at the link.

November 15, 2022 | Permalink

Monday, November 7, 2022

Post on The Unfortunate Consequences of a Misguided Free Speech Principle

Robert Post, Yale Law School, has published The Unfortunate Consequences of a Misguided Free Speech Principle. Here is the abstract.

This is a short essay that will be published in a forthcoming issue of Daedalus on “The Future of Free Speech,” to be edited by Lee Bollinger and Geoff Stone. The essay makes the ambitious claim that it is misleading to diagnosis the current diseased state of public discussion in the United States in terms of an abstract “free speech principle,” as do many commentators. Because human speech is always embedded within specific and concrete social practices, the desirability of speech is always assessed by reference to the flourishing of these practices rather than by the question of speech in the abstract. The idea that speech is special and protected by distinct principles of free expression arose when printing created the modern public sphere. Civil society aspired to use its new communicative capacities to exert political control over the state. Democracy was itself seen as government by public opinion. Prominent theories of free speech do correspond to important aspects of public discourse. Public opinion arises and evolves continuously within public discourse, as concepts of the marketplace of ideas might perhaps be said to theorize. Participants within public discourse ought indeed to be treated as self-determining, so that they may direct the actions of the state through the creation of public opinion, as perhaps might be conceptualized within theories of speaker autonomy. The striking inclusivity of American public discourse, as required by theories prohibiting content discrimination, is necessary to ensure that the American state can maintain legitimacy throughout its vastly diverse population. But it is nevertheless mistaken to conceptualize public discourse through the lens of classic free speech principles like the marketplace of ideas or speaker autonomy or the evil of content discrimination. Public discourse is not simply a collection of individual speech acts. It is a social practice that has a function, which is to ensure the political accountability of the state. Under the spell of a free speech principle, many believe that the illness of contemporary public debate can be cured by more speech. But this recommendation confuses symptoms with causes. Our public discourse has become rancid because our politics has become diseased. Our public discourse cannot be healed until our politics is restored. More speech may help this problem, but it also may exacerbate it. We cannot reach a clear diagnosis until we rid ourselves of the confusing fiction of a free speech principle and instead focus sharply on what we want the social practice of public discourse to achieve.

Download the article from SSRN at the link.

November 7, 2022 | Permalink

Wednesday, October 26, 2022

Shiffrin on Unfit To Print: Government Speech and the First Amendment @UCLA_Law

Seana Shiffrin, University of California, Los Angeles, School of Law, has published Unfit to Print: Government Speech and the First Amendment as UCLA School of Law, Public Law Research Paper No. #26, 2022. Here is the abstract.

Twitter’s legal justification for its exclusion of President Trump, then a sitting president, is that as a nongovernmental actor, Twitter has a First Amendment right to exclude anyone it wishes from its platform. While a very respectable and thus far successful legal position, Twitter’s blunt strategy represents a missed opportunity to defend instead, or in the alternative, on the narrower grounds that Trump’s speech as a government official violated the terms of service that disallows the use of the service 'for any unlawful purpose or in furtherance of illegal activities'. This Article argues that a wider range of government speech than we have previously acknowledged violates the Free Speech Clause—specifically, government lies, culpable misrepresentations by government officials, and government attacks on the legitimacy of criticism. Blunt government attacks on the legitimacy of criticism violate the Free Speech Clause, irrespective of whether such attacks harm any particular individual or group. By denying the very content of the First Amendment’s protection, attacks on the legitimacy of criticism are inconsistent with the duties of officials to uphold the law and the Constitution. Lies and culpable misrepresentations by government officials about public affairs also violate the Free Speech Clause, whether or not those misrepresentations cause harm to particular individuals or groups. Assuming that many such violations would be nonjusticiable, the Article explores the potential opportunities and hazards occasioned by the private enforcement and development of nonjusticiable constitutional norms through the refusal to host unconstitutional speech as such. It considers whether the permanent exclusion of former government officials from social media sites is consistent with the social value of free speech and also whether the interest in protecting the social value of free speech culture recommends that media platforms should attempt to exclude all misinformation, whether by lay citizens or officials.

Download the article from SSRN at the link.

October 26, 2022 | Permalink

LoMonte and Fiku on Thinking Outside the Dox: The First Amendment and the Right To Disclose Personal Information @FrankLoMonte @UFLaw @UMKCLawReview

Frank LoMonte, University of Florida College of Law, and Paola Fiku, Brechner Center for Freedom of Information, have published Thinking Outside the Dox: The First Amendment and the Right to Disclose Personal Information a 91 UMKC L. Rev. 1 (2022). Here is the abstract.

As of the end of 2021, seven states – Arizona, Colorado, Florida, Kentucky, Minnesota, Oklahoma and Oregon – had enacted laws explicitly targeting the practice of “doxing,” which lawmakers have generally defined as involuntarily disseminating home contact information about police officers and others with sensitive jobs who might be targets of vengeful people. In none of these states is there any significant evidence that lawmakers debated the First Amendment implications of making it a crime to publish lawfully obtained information about government employees. That debate is overdue. This Article attempts to provide cautionary guidance about both the constitutional risks and the practical trade-offs that policymakers should take into account before following the lead of the early adopters and creating a new “information crime” of doxing. The authors describe how “doxing” has become weaponized and “defined down” in contemporary political discourse to be synonymous with “disclosing unwelcome information” – even though “disclosing unwelcome information” could also be a synonym for “journalism.” The article critiques legislators’ focus on protecting the least-vulnerable classes of people – specifically, elected officials and police officers – whose behavior is supposed to be the most freely open for public discourse, while the truly vulnerable people for whom “doxing” was coined (e.g., women targeted for misogynist online harassment) remain unprotected. The authors examine the first wave of doxing statutes up against established First Amendment doctrine and conclude that many, if not most, of the proposed and enacted anti-doxing measures are constitutionally infirm. Among their many flaws, these enactments broadly purport to criminalize the disclosure even of harmless everyday public information – including, in some instances, office phone numbers and email addresses of government officials – if done with the requisite mental state. Because mental state is typically a jury question, the likely result is that editorial commentators and activists will find themselves denied summary dismissal and attempting to defend their purpose for making disclosures in front of juries. In particular, Florida’s 2021 statute is singled out as indefensibly broad and ripe for facial challenge, because it criminalizes not only inciting people to violence, but “incitement-once-removed” – that is, inciting others to engage in incitement – which almost certainly runs afoul of the Supreme Court’s protective Brandenburg standard. In view of the antisocial behaviors that are widely agreed to constitute “doxing,” the authors conclude that police and prosecutors already have ample legal tools to pursue threats, identity theft, harassment and other constitutionally unprotected acts, without layering on redundant – and chilling – additional new penalties that assuredly will be used to target critics of police and elected officials. If there is dissatisfaction that truly unlawful trolling behavior is going unpunished, the remedy is not to enact constitutionally dubious new prohibitions, but to make the public-policy decision to prioritize these offenses and equip law enforcement with targeted resources to pursue them.

Download the article from SSRN at the link.

October 26, 2022 | Permalink

Friday, October 14, 2022

Calvert on First Amendment Battles Over Anti-DePlatforming Statutes: Examining Miami Herald Publishing C. v. Tornillo's Relevance for Today's Online Social Media Platform Cases @ProfClayCalvert @UFLaw

Clay Calvert, University of Florida College of Law, has published First Amendment Battles over-Anti-Deplatforming Statutes: Examining Miami Herald Publishing Co. v. Tornillo's Relevance for Today's Online Social Media Platform Cases at 97 N.Y.U. L. Rev. Online 1. Here is the abstract.

Florida adopted a statute in 2021 barring large social media sites from deplatforming-removing from their sites-candidates running for state and local office. Soon thereafter, Texas adopted its own anti-deplatforming statute. A trade association representing several major social media companies is now challenging the laws in federal court for violating the platforms' First Amendment speech rights. A central issue in both NetChoice, LLC v. Moody (targeting Florida's statute) and NetChoice, LLC v. Paxton (attacking Texas's law) is the significance of the U.S. Supreme Court's 1974 decision in Miami Herald Publishing Co. v. Tornillo. In Tornillo, the Court struck down a Florida statute that compelled print newspapers that published attacks on political candidates' character or record to provide access in their pages for those political candidates' replies. This Article examines the relevance of Tornillo's aging precedent in conferring print newspapers with a right of editorial autonomy and a right not to be compelled to speak in today's social media, anti-deplatforming cases. The Article avers that while Tornillo may help the platforms with their legal challenges, its impact is cabined by several crucial factual and legal distinctions. The Article concludes that dicta regarding both access and social media platforms in the U.S. Supreme Court's 2017 decision in Packingham v. North Carolina could play a surprising role in pushing back against Tornillo.

Download the article from SSRN at the link.

October 14, 2022 | Permalink

Tuesday, October 11, 2022

Keck on The Distinctive Pathologies of U.S. and European Approaches to Free Speech @tmksyracuse

Thomas M. Keck, Syracuse University Maxwell School of Citizenship and Public Affairs, has published The Distinctive Pathologies of U.S. and European Approaches to Free Speech. Here is the abstract.

This paper explores the distinctive pathologies of U.S. and European approaches to free speech via comparison of some key features of the U.S. Supreme Court’s First Amendment doctrine and the European Court of Human Rights (ECtHR) caselaw applying Article 10 of the European Convention on Human Rights. On the U.S. side, modern First Amendment law has effectively guarded against state censorship, particularly viewpoint-based censorship, and has cleared space for a diverse array of private speech platforms to operate in the marketplace of ideas. But First Amendment law’s single-minded focus on state suppression leads it to over-police certain state actions whose threats to free expression values seem minimal and to under-police certain private actions whose threats to free expression values seem substantial. On the European side, ECtHR Art. 10 doctrine maintains more space for European states to regulate speech to correct market failures and ameliorate inequalities in private power, but tends to impose insufficient limits on content-based state censorship and sometimes over-zealous mandates for content-based private censorship. Given the harms associated with some aspects of U.S. and European free speech law, civil libertarians are left with the options of picking their poison or bridging the divide.

Download the article from SSRN at the link.

October 11, 2022 | Permalink

Saturday, October 8, 2022

Schafer and Kosseff on Protecting Free Speech in a Post-Sullivan World @MatthewSchafer @jkosseff @FCLJournal @FordhamLawNYC @NavalAcademy

Matthew Schafer, Fordham University School of Law, and Jeff Kosseff, United States Naval Academy, Cyber Science Department, are publishing Protecting Free Speech in a Post-Sullivan World in the Federal Communications Law Journal for 2022. Here is the abstract.

Until 1964, courts were free to penalize journalists, activists, and others for criticizing the most powerful figures in the United States. That changed with the Supreme Court’s opinion in New York Times v. Sullivan, which requires public officials suing for defamation to establish actual malice, a daunting hurdle. Over the next three decades, the Court expanded on Sullivan and built a framework that provides vital First Amendment protections for modern journalism, online commentary, and other criticism. Those safeguards face their greatest threats ever, as high-profile figures weaponize defamation lawsuits and two Supreme Court justices call on their colleagues to join them in reconsidering Sullivan. As the Supreme Court has recently demonstrated, it will not shy away from rethinking even the most vital and established constitutional protections. To prevent the damage to free speech caused by a sudden reversal of Sullivan, we propose the federal Freedom of Speech and Press Act, which codifies many of the protections of Sullivan and its progeny and preempts state defamation laws that do not satisfy certain minimum standards that preserve “uninhibited, robust, and wide-open” debate across the country.

Download the article from SSRN at the link.

October 8, 2022 | Permalink

Friday, October 7, 2022

Marks on Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information @MasonMarksMD @FSUCollegeofLaw

Mason Marks, Florida State College Law; Harvard Law School; Yale Law School; Leiden Law School, Center for Law and Digital Technologies, has published Cognitive Content Moderation: Freedom of Thought and the First Amendment Right to Receive Subconscious Information. Here is the abstract.

In the sci-fi television series Severance, employees of Lumon Industries receive brain implants that segment their memories of work and home life. When they arrive each morning, implants suppress employees’ access to memories of the outside world, including those regarding friends, family, and society. They can retrieve only work-related memories formed within the building. When employees leave work for the day, their implants restore access to memories of the outside world while restricting work-related content. This article presents a novel information-based theory of mind and describes Lumon’s actions as "cognitive content moderation." This practice regulates the internal flow of mental information and influences thought and behavior. Lumon is a fictional corporation, but emerging neuro-technologies like brain-computer interfaces will make cognitive content moderation a reality. Governments already regulate mental processes. For instance, the federal Controlled Substances Act prohibits consuming psychedelic substances that alter the flow of subconscious information and reveal useful insights (after consuming these substances, people often report receiving helpful messages from ancestors, God, nature, or entities from other dimensions). By limiting the use of psychedelics such as psilocybin and dimethyltryptamine, the government engages in cognitive content moderation. Other emerging neuro-technologies, like Neuralink and Synchron's brain implants, will expand the public and private sector's ability to influence internal communications and regulate memory, thought, emotion, and behavior. Most of the brain’s activity occurs subconsciously, and cognitive content moderation primarily affects the flow of subconscious information exchanged between brain modules and sub-regions. Accordingly, the article defines a First Amendment right to receive subconscious information, which limits the government’s ability to regulate cognitive processes by altering or interrupting that flow. This right is supported by existing theory and doctrine that define related rights, including the right to receive information and ideas, to freely operate one’s mind, and to create knowledge. By framing thought and other mental processes in terms of internal information flow, the article attempts to bridge the divide between existing First Amendment theory and doctrine regarding thought, which are relatively underdeveloped and underutilized, and current free speech theory and doctrine, which are robust and expansive. It claims that in addition to influencing the flow of subconscious information, nascent neuro-technologies can render cognitive processes expressive, bringing them further within the First Amendment’s scope. The article concludes by defining the scope and limits of the right to receive subconscious information, addressing likely criticisms, and exploring potential applications. A draft of this article was presented at the 2022 Freedom of Expression Scholars Conference at Yale Law School: https://law.yale.edu/isp/initiatives/floyd-abrams-institute-freedom-expression/freedom-expression-scholars-conference/freedom-expression-scholars-conference-10-2022

The full text is not available for download from SSRN.

October 7, 2022 | Permalink

Thursday, October 6, 2022

Marrazzo on Public Accommodations Originalism's Inability to Solve the Problems Associated With Online Content Moderation @StMarysLJ @NDLaw

Vincent Marrazoo, University of Notre Dame Law School, is publishing Public Accommodations Originalism's Inability to Solve the Problems Associated With Online Content Moderation in volume 54 of the St. Mary's Law Journal. Here is the abstract.

In response to online platforms’ increasing ability to moderate content in what often seems to be an arbitrary way, Justice Clarence Thomas recently suggested that platforms should be regulated as public accommodations such that the government could prevent platforms from banning users or removing posts from their sites. Shortly thereafter, Florida passed the Transparency in Technology Act which purported to regulate online platforms as public accommodations and restricted their ability to ban users, tailor content through algorithmic decision-making, and engage in their own speech. Texas followed suit by passing a similar law and Arizona is currently debating its own bill purporting to regulate platforms as public accommodations. Given the obvious First Amendment concerns with regulating an online platform’s ability to publish and control content on its own forum, courts and legislatures must ensure that such regulations comport with the original understanding of how public accommodations could be regulated at the time of the founding (public accommodations originalism for short). As this Article argues, businesses could be regulated as public accommodations at the founding because they either: (1) held themselves out to the public as willing to serve all comers (the holding out theory); or (2) were subject to franchise obligations through legislation often because they were natural monopolies (the franchise theory). Most online platforms exhibit the necessary characteristics of public accommodations under both the holding out theory and the franchise theory and can thus be regulated as public accommodations according to the term’s original meaning. That said, public accommodations originalism is subject to significant limitations as applied to online platforms. Specifically, under the holding out theory, an online platform can evade public accommodations status merely by ceasing to hold itself out as willing to serve all comers. Under the franchise theory, platforms must be given an exclusive government benefit in exchange for the corresponding duty to host content. Even where such a benefit exists, the platform cannot be subject to an absolute duty to host. Furthermore, platforms would largely maintain control over their algorithmic decisions and could not be prevented from engaging in their own speech. Therefore, while public accommodations originalism will limit a platforms ability to moderate content, it will not entirely undermine the platform’s autonomy. Any law purporting to regulate platforms as public accommodations that does not respect these limitations is unconstitutional since it does not comply with the original public meaning of the First Amendment and the law of public accommodations. Notwithstanding the limited ability of public accommodations originalism to remedy some of the abuses associated with content moderation, the normative implications of such regulation cannot be ignored. Public accommodations originalism will require online platforms and their users to tolerate immoral, lewd, and otherwise objectionable content. But it will also prevent platforms from removing content that serves an important public purpose. Balancing these interests are matters that legislatures must contend with when debating whether to impose public accommodations regulations onto online platforms, but the fact of the matter is that such regulations (when appropriately tailored) are constitutional and should be upheld by the courts.

Download the article from SSRN at the link.

October 6, 2022 | Permalink

Tuesday, October 4, 2022

Sanders, Jones, and Liu on Stemming the Tide of Fake News: A Global Case Study of Decision to Regulate @amy_k_sanders

Amy Kristin Sanders, University of Texas, Austin, School of Journalism, Rachael Jones, University of Florida, College of Law, and Xiran Liu, Northwestern University, have published Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate at 8 Int'l Media & Ent. L. 203 (2019). Here is the abstract.

It is no secret that fake news has become a lucrative enterprise. The impact of fake news undoubtedly can be felt on nearly every continent – from the United States presidential election to the streets of Venezuela, the islands of Indonesia, and even among Macedonian teenagers looking to turn a quick profit. As the tide of anger-inspiring articles continues to churn out false reports en masse, sending shockwaves through the Internet, political leaders around the globe are debating the development of policies and practices aimed at curbing the spread of sensationalist – and often made-up – “news” stories that are influencing their countries’ citizens. Some nations have decided to develop legislation to regulate the fake news epidemic. For example, in 2017, Germany enacted a law that authorizes fines of up to 50 million Euros against platforms that fail to remove objectionable or false content within 24 hours of being notified. Germany’s law aims to enlist the power of the private sector to restrict this form of false content, targeting social media companies like Facebook, Twitter, and other social media sites that create a haven for fake news. Although government attempts to crack down on fake news are carried out in the name of preserving democracy, whether these policies serve the best interest of free speech and press has yet to be determined. While Germany’s new law is by far the “boldest step” taken by a Western democracy, other countries, such as the Philippines, have made similar legislative moves. Officials in the Czech Republic, concerned about potential interference with the upcoming 2017 parliamentary and presidential elections, established a government unit designed to root out and flag fake news in the name of truth and democracy. Calls for action in Singapore and other countries have been less dramatic, seeking revision of existing laws to address fake news concerns. However, these less direct methods of redress are troubling nonetheless and may be problematic in the future. In contrast, the movement to punish and regulate fake news in the United States has gained little traction because of the significant constitutional hurdles presented by the First Amendment. This article examines and evaluates these major global attempts to curtail fake news in light of democratic values and ideals. Using the “marketplace of ideas” and “self-governance” theories of freedom of expression, this article ultimately condemns government regulation of fake news. It cautions that government regulation of speech generally tips the balance of power in a democratic society in favor of the government and away from individual citizens. This article contends that government regulation of even false speech frustrates the marketplace of ideas by limiting voices and thus preventing the public from receiving all perspectives on issues directly related to their democracy. This, in turn, affects the bedrock democratic principle of self-governance. This, on top of the lengthy history of fake news, indicates that government regulation is merely a solution to an old problem, not the creation of new laws. Rather, this article argues that the perceived global crisis created by fake news instead merits reconsideration and revaluation of how we prepare citizens for their role as participatory members of a democratic society through greater education, news literacy, and understanding of how the marketplace works.

Download the article from SSRN at the link.

October 4, 2022 | Permalink

Sanders, Jones, and Liu on Stemming the Tide of Fake News: A Global Case Study of Decision to Regulate @amy_k_sanders

Amy Kristin Sanders, University of Texas, Austin, School of Journalism, Rachael Jones, University of Florida, College of Law, and Xiran Liu, Northwestern University, have published Stemming the Tide of Fake News: A Global Case Study of Decisions to Regulate at 8 Int'l Media & Ent. L. 203 (2019). Here is the abstract.

It is no secret that fake news has become a lucrative enterprise. The impact of fake news undoubtedly can be felt on nearly every continent – from the United States presidential election to the streets of Venezuela, the islands of Indonesia, and even among Macedonian teenagers looking to turn a quick profit. As the tide of anger-inspiring articles continues to churn out false reports en masse, sending shockwaves through the Internet, political leaders around the globe are debating the development of policies and practices aimed at curbing the spread of sensationalist – and often made-up – “news” stories that are influencing their countries’ citizens. Some nations have decided to develop legislation to regulate the fake news epidemic. For example, in 2017, Germany enacted a law that authorizes fines of up to 50 million Euros against platforms that fail to remove objectionable or false content within 24 hours of being notified. Germany’s law aims to enlist the power of the private sector to restrict this form of false content, targeting social media companies like Facebook, Twitter, and other social media sites that create a haven for fake news. Although government attempts to crack down on fake news are carried out in the name of preserving democracy, whether these policies serve the best interest of free speech and press has yet to be determined. While Germany’s new law is by far the “boldest step” taken by a Western democracy, other countries, such as the Philippines, have made similar legislative moves. Officials in the Czech Republic, concerned about potential interference with the upcoming 2017 parliamentary and presidential elections, established a government unit designed to root out and flag fake news in the name of truth and democracy. Calls for action in Singapore and other countries have been less dramatic, seeking revision of existing laws to address fake news concerns. However, these less direct methods of redress are troubling nonetheless and may be problematic in the future. In contrast, the movement to punish and regulate fake news in the United States has gained little traction because of the significant constitutional hurdles presented by the First Amendment. This article examines and evaluates these major global attempts to curtail fake news in light of democratic values and ideals. Using the “marketplace of ideas” and “self-governance” theories of freedom of expression, this article ultimately condemns government regulation of fake news. It cautions that government regulation of speech generally tips the balance of power in a democratic society in favor of the government and away from individual citizens. This article contends that government regulation of even false speech frustrates the marketplace of ideas by limiting voices and thus preventing the public from receiving all perspectives on issues directly related to their democracy. This, in turn, affects the bedrock democratic principle of self-governance. This, on top of the lengthy history of fake news, indicates that government regulation is merely a solution to an old problem, not the creation of new laws. Rather, this article argues that the perceived global crisis created by fake news instead merits reconsideration and revaluation of how we prepare citizens for their role as participatory members of a democratic society through greater education, news literacy, and understanding of how the marketplace works.

Download the article from SSRN at the link.

October 4, 2022 | Permalink

Monday, September 26, 2022

Bunker and Erickson on Circuit Splits, Dictionaries & Legal Essences: The Right of Publicity as "Intellectual Property" @m_bunker

Matthew D. Bunker and Emily Erickson have published Of Circuit Splits, Dictionaries & Legal Essences: The Right of Publicity as "Intellectual Property" at 29 UCLA Entertainment Law Review 1 (2021). Here is the abstract.

This Article first provides a basic outline of both the right of publicity and the mechanism of Section 230. Next, it analyzes the existing case law interpreting Section 230’s intellectual property exclusion. The Article then explores three dimensions that suggest the right of publicity should not be treated as intellectual property for 230 purposes. Finally, it offers concluding perspectives on this difficult and vitally important area of the law.

Download the article at the link.

September 26, 2022 | Permalink

Friday, September 23, 2022

Ananian-Welsh on Who Is a Journalist: A Critical Analysis of Australian Statutory Definitions @ananianwelsh @uqlaw @FederalReview

Rebecca Ananian-Welsh, University of Queensland School of Law, is publishing Who is a Journalist? A Critical Analysis of Australian Statutory Definitions in the Federal Law Review. Here is the abstract.

This article provides the first comprehensive study of statutory definitions of journalist and journalism in Australian law and proposes a preferred definition of journalist by reference to statutory aims, bedrock legal principles, and broader scholarship. It begins with a review of existing literature on the meaning of journalist in the modern media landscape, before turning to Australian law. A qualitative survey of legislation identified 11 textually different definitions of the term ‘journalist’ across 18 separate statutes, and a single definition of ‘journalism’. Examination of the statutory contexts, purposes and framing of these definitions reveals they are comprised, broadly, of six ‘approaches’. These approaches are critically analysed against a novel five-part thematic framework, with particular attention given to whether journalists should be defined by reference to ethical codes and responsibilities. The article concludes by identifying a preferred definition of journalist capable of informing law reform across a wide variety of areas of law, including: protections for press freedom, journalistic access to information, shield laws and whistleblower protections.

Download the article from SSRN at the link.

September 23, 2022 | Permalink

Monday, September 12, 2022

Ernst on Whether Trump Really Is Too Small: The Right To Trademark Political Commentary @ProfSamErnst @BrooklynLawRev

Samuel Ernst, Golden Gate University School of Law, is publishing Trump Really Is Too Small: The Right to Trademark Political Commentary in volume 88 of the Brooklyn Law Review (2023). Here is the abstract.

Can you register a famous person’s name as your trademark? The Lanham Act seems to say no, and the PTO interprets this to mean, no, never, no matter what. The Federal Circuit says, “yes, you can,” at least as applied to marks containing political commentary. 15 U.S.C. § 1052(c) provides, in pertinent part, that the PTO must deny federal registration to a trademark if it “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent….” Earlier this year the Federal Circuit declared this law unconstitutional in violation of the First Amendment, at least as applied to a mark that criticizes defeated former President Donald Trump by announcing, “TRUMP TOO SMALL.” Under Supreme Court precedent, the court was undoubtedly correct, and likely should have gone further to declare the provision facially invalid as overbroad. The government now suggests that section 2(c) is necessary to protect free speech, because granting applicants trademarks in political commentary interferes with others seeking to say such things. This fear is unfounded and does not save the constitutionality of the provision. In fact, section 2(c) fails to address the real First Amendment concerns with the Lanham Act: the potential for politicians themselves to monopolize speech critical or complimentary of themselves through trademark registration. Indeed, Section 2(c) results in de facto viewpoint discrimination because it allows politicians to veto marks containing their names that lodge criticism, while registering marks containing their names of which they approve. These free speech issues with trademark registration highlight the limitations of the Supreme Court’s, rigid, categories-based First Amendment jurisprudence, which focuses myopically on the negative rights of the speaker, without weighing the way in which enforcement of those rights may burden the free speech of others and result in less free speech in society. This problem is particularly odious in the context of intellectual property, where speakers are not only asserting the right to speak, but also the exclusionary right to prevent others from saying the same thing. A solution to the problems with trademarking political speech already lurks in our trademark laws and can be implemented without offending the First Amendment: the “failure to function” doctrine. Political slogans, no matter who wields them, and no matter whether they are critical or complimentary, do not function primarily as source indicators. There is no reason grounded in legitimate trademark policy to protect such marks. The fact that they are protected now is yet further indication that the Lanham Act has evolved far beyond its intended purpose as a consumer protection and unfair competition statute into a species of intellectual property that threatens free speech by granting ownership in mere words.
Download the article from SSRN at the link.

September 12, 2022 | Permalink

Saturday, August 27, 2022

Whittington on Professional Speech, the First Amendment, and the "Anti-CRT" Laws @kewhittington

Keith E. Whittington, Princeton University, has published Professorial Speech, the First Amendment, and the 'Anti-CRT' Laws. Here is the abstract.

Academic freedom enjoys an uncertain status in American constitutional law under the First Amendment. It is particularly unclear how the First Amendment applies when it comes to professorial speech in the classroom. This lack of clarity has grave implications in the current political environment. There is now an unprecedented wave of legislative proposals aimed at curtailing teaching and discussing controversial topics relating to race and gender in state university classrooms, and the constitutionality of such measures will soon need to be resolved. This Article sets out a new argument for protecting from legislative interference how faculty at state universities teach their courses. Building on existing First Amendment jurisprudence regarding academic freedom and government employee speech, the article lays out the constitutional infirmities with anti-Critical Race Theory proposals and clarifies the scope of an individual constitutional liberty in the context of professorial speech.

Download the article from SSRN at the link.

August 27, 2022 | Permalink

Friday, August 26, 2022

Bhagwat on Why Social Media Platforms Are Not Common Carriers @AshutoshBhagwa8 @JournalSpeech @UCDavisLaw

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, is publishing Why Social Media Platforms Are Not Common Carriers in the Journal of Free Speech Law (2022). Here is the abstract.

In a recent opinion respecting denial of certiorari, Justice Clarence Thomas expressed concerns about the degree of control that a handful of social media platforms exercised over political discourse, and suggested common carrier regulation as a potential solution to this perceived problem. The States of Florida and Texas promptly adopted legislation restricting social media companies’ ability to control content and users on their platforms, explicitly citing the common carrier concept in support. In this paper, I argue that even under Justice Thomas’s (probably incorrect) definition of common carriage, and certainly under the traditional definition, platforms simply are not common carriers. They do not possess any of the characteristics that Justice Thomas himself cited as typical of common carriers; and more fundamentally, they lack the fundamental characteristic—indifference to the content they carry—that is typical of communications common carriers. Indeed, and ironically, it is precisely because platforms are not indifferent to content, and act on their preferences (in particular by deplatforming President Trump), that Thomas proposed, and Florida and Texas adopted, regulation of platforms. These regulations, however, clearly violate the First Amendment, and appear headed for rapid judicial invalidation. Social media platforms, in short, are not common carriers, and cannot be forced to become ones by legislative fiat so long as the First Amendment remains in force. The essay concludes by arguing that common carrier regulation of social media platforms is not only unconstitutional, it is also a terrible idea as a matter of public policy.

Download the article from SSRN at the link.

August 26, 2022 | Permalink

Monday, August 22, 2022

Newly Published: Constitutionalising Social Media (Edoardo Celeste, Amelie Heldt, and Clara Iglesias Keller, eds., Bloomsbury, 2022)

Newly published:

 

Constitutionalising Social Media

Edited by Edoardo Celeste, Amélie Heldt and Clara Iglesias Keller

This book explores to what extent constitutional principles are put under strain in the social media environment and brings together a multi-disciplinary group of experts from law, political science, and communication studies to examine the challenges of constitutionalising what today can be considered the modern public square.

The book analyses the ways in which online platforms exercise a sovereign authority within their digital realms, and sheds light on the ambiguous relationship between social media platforms and state regulators. It is an essential guide to understanding how to preserve constitutional safeguards in the social media environment.

Edoardo Celeste is Assistant Professor in Law, Technology and Innovation at the School of Law and Government of Dublin City University, Ireland.

Amélie Heldt is Researcher at the Leibniz Institute for Media Research (Hans-Bredow-Institut), Germany, and Lecturer in Fundamental and Human Rights at the Berlin School of Economics and Law, Germany.

Clara Iglesias Keller is Researcher at the WZB Berlin Social Science Centre, Germany, and Associate Researcher at the Alexander von Humboldt Institute for Internet and Society (Berlin), Germany.

Jun 2022   |   9781509953707   |   352pp   |   Hbk   |    RRP: £85 / $115

Discount Price: £68 / $92

Order online at www.bloomsbury.com  – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off!

 

 

August 22, 2022 | Permalink

Saturday, August 20, 2022

Procaccini on Equal Speech Protection @f_procaccini @vanderbiltlaw @VirginiaLawRev

Francesca Procaccini, Vanderbilt Law School; Harvard Law School; Yale Law School, is publishing Equal Speech Protection in volume 108 of the Virginia Law Review. Here is the abstract.

Political speech is not special. No type of speech is. First Amendment doctrine ubiquitously claims to value speech on a hierarchy, with political speech occupying the highest and most-protected position, followed by commercial speech and speech on private matters, with low-value speech on the bottom, least-protected rung. This hierarchy is a myth. The true but hidden framework of free speech law is actually one of equal speech protection. All speech, including political speech, receives comparable protection—and that level of protection is quite moderate across the board. Specifically, the equal protection speech receives permits the state to regulate speech in order to protect a safe and informed democratic discourse. This Article explains the origins and bases of the hierarchy myth, the reasons why equal speech protection supplants the hierarchy model, and the consequences of the myth’s persistence despite its failure to guide free speech doctrine. Dismantling the myth that the First Amendment embraces a hierarchy of speech protection is critical at this precarious moment in the development of free speech law, when regulating speech—of all kinds—is essential to fostering a healthy public sphere. By excavating a robust tradition of equal and moderate speech protection out from under the shadow of the hierarchy myth, this Article recovers the hidden “social democratic theory” of speech protection—a theory that is singularly suited to addressing the modern speech challenges raised by an ever-expanding digital economy and dangerously toxic political speech environment.

Download the article from SSRN at the link.

August 20, 2022 | Permalink